Director of Public Prosecutions v Hartigan (a pseudonym)
[2018] VCC 570
•23 April 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| JEREMY HARTIGAN (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 23 April 2018 | |
CASE MAY BE CITED AS: | DPP v Hartigan (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 570 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Bourke | |
| For the Accused | Mr R. Backwell |
HER HONOUR:
1 Jeremy Hartigan[1], a jury has found you guilty of four charges of indecent act with a child under 16 and one charge of sexual penetration of a child under 16. The victim in this matter was Eve Newland[2], the granddaughter of your wife Mariam Hartigan.[3] You were her step-grandfather. She was aged between five and six years during the period of offending.
[1] Jeremy Hartigan is a pseudonym.
[2] Eve Newland is a pseudonym.
[3] Mariam Hartigan is a pseudoyn,
2 That offending occurred during a period when you were looking after Eve whilst her parents worked and her brothers were at school, that is, at the home you shared with your wife in Rivertown.[4]
[4] Rivertown is a pseudonym
3 In relation to Charges 1-4 which all occurred on the same occasion in the year before starting primary school, the complainant was at your home as I have said whilst her parents were at work and her brothers at school. Her grandmother was volunteering at the local Historical Society and also was not at home. The complainant was with you in the lounge room when you laid her back onto your sofa chair. You removed her underwear and touched her vagina with your fingers. These actions underlie Charge 1 on the indictment, indecent act with a child under 16.
4 You then rubbed the complainant's vagina and inserted your fingers into it, moving them in and out. These actions underlie Charge 2 on the indictment, sexual penetration of a child under 16.
5 You then licked the complainant's vagina which actions underlie Charge 3, indecent act with a child under 16, then stood up and changed positions with the complainant so that you were sitting in the chair. You then made her touch you on your penis with her hand. That action underlies indecent act with a child under 16, Charge 4.
6 On a second occasion the complainant was again alone with you at your home, her grandmother again volunteering at the Historical Society. You were sitting on your sofa chair and positioned the complainant at the top of the chair near your head so that her legs were around your shoulders. You then licked her vagina. These actions underlie Charge 5 on the indictment, indecent act with a child under 16.
7
The complainant disclosed the alleged offending to two friends whilst at school, the first to a friend in 2014 and the second in 2015. Eventually teachers at the school became aware of the allegations, contacted police and reported the matter. Police attended the school, spoke to the complainant and then spoke to her family. The complainant participated in a VARE on 21 July 2015 during which she detailed the charges. She and her family were uncertain whether they wish the matter to be taken further and police did not proceed therefore with investigation at the time. However on
27 January 2016, both the complainant and her family advised police she did wish to proceed and the investigation was recommenced. Police attended at your home on 18 February 2016 when you were arrested and taken to the Rivertown Police Station for interview.
8 During that record of interview you made denials stating that the only inappropriate touching would have been inadvertently. You denied inserting your fingers into the complainant’s vagina and in relation to other offences said you could not remember, saying that you could not understand it, that you had no recollection at all. When asked whether you had put your hand down her pants and touched her vagina, stated, "Not to my knowledge I haven't, not - not intentionally anyway."
9 You told police that on many occasion you had to take the complainant's hands out of her pants. When asked if you wanted to say anything in relation to the charges, you said,
"Well I definitely don't consider anything that has happened as rape" .
10 And
"Sexual assault maybe inadvertently but that's it, that's the way I feel."
11 The maximum penalty for the charge of sexual penetration, because the complainant was aged under ten at the time, is 25 years' imprisonment. The maximum penalty for indecent act with a child under 16 is ten years' imprisonment.
12 Victim impact statements were received from the complainant and both her parents. The victim impact statement of the complainant made for distressing reading. In it was a very detailed outline of the classic distress that is caused to so many complainants in the situation that Eve was. She stated,
"As a result of being sexually abused I lost all self-respect for myself. At the age of 11 I couldn't face the fact to look at myself in the mirror, looking into the mirror and seeing my reflection made me feel disgusted and uncomfortable with myself. I felt like I was nothing and had no power over my own body and self."
13 She stated that as a teenager she had been unable to have stable relationships with men because she was unable to trust then as she was,
"I'm afraid they will take my power away like it has been in the past because of Jeremy."
14 She then detailed her distress at the split in her family that her revelations had caused. Your wife Mariam has sided with you, has told the complainant she does not believe her and the complainant stated:
"Because of this I lost my grandma, one of the major role models in my life. This made a huge impact on me, this makes me feel like everything was my fault and I have made my family fall apart."
15 It would appear that the complainant who detailed in her victim impact statement that she suffered from panic attacks, "and not feeling worth of myself" made a suicide attempt. She stated,
"I made myself feel as if I wasn't good enough to be alive. I have failed myself, I tore my family apart, I made my mum and auntie lose their mum, my brothers and cousin lost their grandma."
16 In other words the complainant continues as unfortunately often complainants of sexual assault often do, to blame herself for the fallout with her family as a result of your offending and her revelation of it and has also described the unfortunately all too typical self-worth issues that victims of sexual assault can encounter.
17 The victim impact statements from her parents also detailed their own terrible guilt as they blamed themselves for not having protected their daughter, again a parental reaction too often sadly seen in cases of this kind. The situation was that you were very much trusted by Eve’s parents and by Eve herself and I am satisfied that the effects, the ripple effects if you like, of your offending have been indeed severe and that the effect upon the complainant herself has been of a most grave nature, and that that effect will be ongoing.
18 I now turn to your personal circumstances. You are now 83 years of age and were born in England the eldest of three children. You left school at aged 15 taking up an apprenticeship as a plumber but were then called up for National Service. You joined the Royal Navy where you remained for 12 years, spending most of that time at sea. You married in 1957 but were away at sea for most of that marriage and retired from the navy in 1964. This your counsel told me put a stress on an already strained relationship and it was decided in 1974 that you and your wife and family would make a fresh start and you emigrated to Australia. Soon after your wife returned to England with your children and divorce proceedings took place.
19 Between 1964 and 1974 you worked as a rigger in England following your retirement from the Navy, and in Australia worked for various companies as a maintenance engineer. You met your wife Mariam in 1981 and married her in 1983. You retired in 1999. You and your wife have a long association with the Rivertown Historical Society. You are a life member and a former executive member. You apparently withdrew your membership from the society when the allegations were revealed in 2016. You are not an Australian citizen, having been of the belief that you would be naturalised simply because, as I understand it, of your country of origin and the passage of time. It appears you may face deportation at the end of any sentence you serve. You have had some health issues in the past but your counsel conceded you have no real current health problems which would cause you any difficulty in serving a term of imprisonment. It was conceded by your counsel that the only appropriate response from this court would be a term of imprisonment to be immediately served. The actions were a gross breach of trust, aggravated by the fact that they occurred upon a child under the age of ten and you have pleaded not guilty to the charges.
20 The prosecutor submitted that the breach of trust was a serious one, you having been a grandfather figure to the complainant all her life. He pointed out the aggravating feature of the complainant's very young age and further pointed to the lack of remorse as indicated by your plea indicating that you had no insight and submitted that this then flowed into the prospects of rehabilitation. It was conceded that your age did affect the risk of reoffending in the future. It was submitted that your moral culpability in this offending was high.
21 There has been some delay in this matter, however it is not an unusual delay in cases of this kind where the victim is a very young child and where the offender is a member of that child's family. I was referred to several cases essentially by the prosecutor and I have had regard to them. Of significance primarily in this case however is the case of TRG v R {2011] VSCA where at paragraph 63 the court outlined a number of factors to be taken into account where an offender is of particularly advanced age. The court stated that it was a weighty consideration that the offender was likely to spend the whole or a very substantial portion of the remainder of their life in custody. The court continued to say that other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospects that the offender may not live to be released. I regard those remarks as having application to your case given your age. However the court made it plain that old age and ill health (I hasten to add that the latter factor does not apply in this case), do not justify the imposition of an unacceptably inappropriate sentence.
22 I do regard your age as being a relevant matter of some significance in the sentencing exercise before me. You are 83 and it is likely that any sentence this court imposes will take up the majority of the remainder of your life. I also take into account that because of your age prison maybe more onerous for you. You are a man of no prior or subsequent convictions and this too is a factor that in my view will make prison more difficult for you.
23 In sentencing I take into account your lack of prior or subsequent convictions (although that is of lesser weight in a case such as this), your good working history and the issues of your age and the burden this will place upon any term of imprisonment that is imposed upon you. You have however pleaded not guilty, you have shown no remorse, your victim was a very young child who was in your care, it was a gross breach of trust which has had an appalling effect upon both the complainant and her family.
24 I absolutely accept that the only way a court can respond to this offending is by way of a term of imprisonment to be immediately served. I do note that the authorities state that delay in any case does have some effect but in cases such as these is moderated. It is not uncommon as I earlier stated for complainants in the position that this complainant was, to take some years to complain so that the effects of delay will have a lesser effect than they would have in other cases.
25 Taking all these matters into account I therefore sentence you as follows. Could you stand up please sir.
26 On Charge 1 you are sentenced to 12 months' imprisonment.
27 On Charge 2 you are sentenced to five years' imprisonment.
28 On Charge 3 you are sentenced to two years' imprisonment.
29 On Charge 4 you are sentenced to 12 month's imprisonment.
30 On Charge 5 you are sentenced to two years' imprisonment.
31 The base sentence will be the sentence imposed on Charge 2, that is five years' imprisonment. I order that three months of the sentence imposed on Charge 1, six months of the sentence imposed on Charge 3, three months of the sentence imposed on Charge 4 and 12 months of the sentence imposed on Charge 5 be served cumulatively to the sentence imposed on Charge 2 and to each other giving a total effective sentence of seven years. I order that you serve four and a half years before becoming eligible for parole. I note that you are a serious sexual offender and are to be sentenced as such in relation to Charges 3, 4 and 5 on the indictment. You are also to be placed on the Serious Sexual Offenders Register for life.
32 Have a seat please sir.
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HER HONOUR: Yes thank you, we will stand down until 2.15.
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