Director of Public Prosecutions v Hateley

[2016] VCC 1381

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01168

DIRECTOR OF PUBLIC PROSECUTIONS

v

OWEN HATELEY

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2016
DATE OF SENTENCE:	16 September 2016
CASE MAY BE CITED AS:	DPP v Hateley
MEDIUM NEUTRAL CITATION:	[2016] VCC 1381

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Henderson
For the Accused	Mr P. Higham

HIS HONOUR: 

1Owen Hateley, on 12 April 2014 you were at your home in a small hamlet of Merrigum.  You shared the house there with another young man.  He had been in a relationship in the past.  He was telephoned by his ex-girlfriend, who invited him to the nearby township of Rushworth.  He went there and met his ex-girlfriend, who was, at the time, in the company of the complainant in this case.  Alcohol was bought and the group returned to the house.  Two other friends came to the house.  A bonfire was going in the yard and music was playing and all were having alcoholic drinks.  The scene was likely one repeated for decades all over country Victoria and likely to be repeated into the future.  It was an appropriate social activity, though there were young people there who perhaps should not have been drinking.

2You were 18.  The young woman - one of the other young women, or both the other young women were 16.  The complainant was 15, nearly 15 and a half.  Everyone seemed to be enjoying themselves.  For reasons best known to themselves and likely influenced by how much they had drunk, at one point the young women took off their tops and danced topless.  The complainant did so and in this state, decided to hug you.

3At another point, when you went off to privately urinate, the complainant came up behind you and surprised you and grabbed your penis.  In response to all this, you did not nothing inappropriate.  Indeed, in the latter instance, you moved away and put your penis in your pants and zipped up.

4Later in the evening, you took yourself off to bed.  You were affected by alcohol, but all that is your right, as you were 18.  You were an 18 year old man.  You went to bed in your jeans and boxer shorts and were there for about five minutes.  Then the complainant came in, uninvited, to you room and again, uninvited, got into your bed.  She took your clothes off you.  She sucked your penis and removed her own clothing and sat on you, guiding your penis into her vagina.  After sex, which also involved kissing on the neck, leaving marks on both of your and her necks, she fell - she and you fell asleep.

5The next day, others saw these - what are known as hickeys on your necks.  Two days later you - she told her mother something sexual had happened.  The account, to her mother, as to the complaint, is hard to reconcile with the agreed facts.  In any event, the police interviewed you on 30 April 2014.  You gave a full account of events, which the prosecution accept as true, given the summary of facts tendered by the prosecution on the plea.

6For reasons that have been explained, the matter - the police did not charge you until two years later.  The courts and especially after the committal in July of this year, have moved speedily, mindful of both your youth and the impact on the complainant if the matters just simply remained unresolved.  I take into account this delay as a significant mitigatory matter in the life of a young person.

7This conduct saw the police charge you and the DPP decide, in the exercise of his discretion, to proceed with an indictment, however, the conduct is palpably at the lowest end of the scale in respect of this offending.  It will benefit no one to elaborate further, because the facts, as articulated by the prosecution, as set out in the agreed summary of facts, simply speak for themselves.  The obvious point of these laws is to protect children and in some instances, such as this, protect them from themselves.  However, the wide discretion that I have must be exercised to ensure that the penalty is truly proportionate to the criminal conduct.

8The complainant and her mother have provided victim impact statements and I have read them carefully and I have taken them into account.  The complainant has gone off the rails and it is hoped that she can straighten things out.  The effect on an immature person of early sexual experiences can be long lasting and can cause emotional problems.  The victim's mother has been herself affected, as she has seen her daughter's behaviour deteriorate.

9Your personal circumstances were outlined by your counsel in his written submissions and briefly in oral submissions, as well as in a psychological report of Ms Matthews and an earlier psychological report by Ms Cidoni.  For the purposes of this plea and sentence, the key factors in your personal circumstances are one, your youth.  You are now 21, but were 18 at the time of the events in the interview.  I will apply all the principles articulated by the Court of Appeal in Azzopardi and in Mills in relation to young offenders.  Your rehabilitation is thus the paramount consideration.  General deterrence and denunciation fall away, although they are not entirely eliminated.

10You are of low intellect, but have, to your credit, got work after school.  In this respect, I have read the letter provided by your current employer, Mr Webb, who says that you are a hard-worker, reliable, with a good attitude to work and very capable, in particular, with machinery.  This provides a good foundation for you simply being a lawful and contributing member of our community.

11The third matter is that you have had grief and consequently lasting depression as an adolescent.  The cards dealt you have not made life that easy, but I do not over-emphasise this in respect of the offending.

12Your risk of future sexual offending is assessed as low by Ms Matthews.  In my view, given that I have looked at carefully the technical psychological assessments and then added my own broad assessment of all the circumstances, your risk of reoffending in like manner are very to vanishingly low.  As I will reiterate firmly in a moment, you do not, in any way, shape, or form, present as a danger to the sexual safety of anyone.

13As made clear in Storey's case in our Court of Appeal by a five judge Bench and repeated by Justice Hayne in the High Court on more than one occasions, sentencing should avoid undue sophistication, but rather be a process easily understood by ordinary members of our community.  In my view, ordinary members of our community would well understand and support you being given a chance.

14Given the circumstances of this case, the sentencing purposes of denunciation and deterrence are not nearly as weighty as they usually are when this offence is prosecuted.  Rehabilitation is important, as I have said.  You do not need to do courses or programs, but rather I expect that a promise to the court, no small matter, that you will behave properly in the future, will be important to you, you will take it seriously and abide by it.

15I note you have a single prior court appearance for driving offences when you were just 18.  Those are not relevant to this offending.  The breach of this offending by - the breach by this offending of the imposed community corrections order is of little moment in the full scheme of things.

16I have spoken of the requirement that I give rehabilitation paramount consideration, as I am required to do by the law.  That is, the law tells me that I must give rehabilitation the primary consideration and I have endeavoured to do that, but at the same time, Parliament requires, by reason of the Sex Offenders Registration legislation to make an order that I think will impede any rehabilitation.  The orders are plainly unnecessary in this case, as you present as no risk to anyone.

17The lack of any judicial discretion, again, will result in an overall outcome that is not just or appropriate.  I do not consider the Sexual Offences Register Act in coming to my sentence, as I am not allowed to do so by reason of the Sentencing Act, but I cannot leave this matter without again, as other judges have done so, make a call for common sense to break out to allow for orders under this Act for this offending, in circumstances such as this, to be imposed if the tests, the well-known tests, allowed for under the Act, which apply to different circumstances and charges to apply to this charge.  That is, a question is to be asked:  "Is an order needed to ensure the sexual safety of someone or the community in general?"

18I add that, in these sorts of circumstances again, busy detectives will have to supervise you for years when the time and effort of those police officers ought be directed towards other policing work, such as truly protecting the community by supervising dangerous sexual offenders under this Act, or investigating sexual offences.

19There is, in my view, given all the circumstances of you as the offender and this offence, no need for a conviction to be recorded.  I say that notwithstanding ordinarily that this would be the case.  I say that notwithstanding that the prior matters which are - that you have had before the courts have involved a conviction.  In my view this is offending that does not require a conviction to be recorded.

20I impose the following penalty in respect of the charge of sexual penetration of a child under the age of 16 without a conviction.  The matter is adjourned for six months on condition that you be of good behaviour.  A document will be produced.  If you sign that document, that will bring this matter to an end.  However, you will also be provided with another document.  That is a document that will indicate to you that you must register under the Sex Offenders Registration Act and remain on that register for 15 years, almost as much as you have been alive.

21However, all I can do is, provide you with the document.  I will ask you to sign that you have been given it.  I will sign the document saying I have given it to you, but the important thing is, what the document says, the content of it.  Notwithstanding all I have said about the inappropriateness of the order in this case, you must comply with it.  There are serious consequences if you do not.  The consequences involve other offending if you do not comply with the requirements.

22The requirements are onerous for a young person.  They include you providing details, for instance and I am not giving the full catalogue, I am just giving you a sense of things so that you understand I must look carefully at all this and comply with it.  They include providing every internet address or identity you might have.  Every email.  Every - if you have a gaming name or something on the internet.  All of those things have to be provided and updated to the police regularly.  What cars you drive.  Where you live.  What tattoos you might get.  All these things have to be provided to the police.  I just say that so that you will now take it upon yourself to look very carefully at what is required and go through it with the police officers and your lawyers ultimately, so that you do what is required of you.  Do you understand all that?

23OFFENDER:  Yes.

24HIS HONOUR:  Thank you.  Is there any other orders required?

25MR HENDERSON:  No Your Honour.

26MR HIGHAM:  No Your Honour.

27HIS HONOUR:  Thank you.  The legislation in respect of what sentence might have been imposed had I - had Mr Hateley pleaded not guilty and being found guilty of these offences does not - does not invoke, by reason of imposing the penalty that I have imposed, but I should make it clear to the community and to Mr Hateley, just in general terms, that your plea of guilty is a very significant matter in this.  Had you pleaded not guilty and taken the odds and put the child, or the complainant, through evidence, it is highly likely you would have faced a potential gaol term, or at least an onerous community corrections order.  Is there anything else required?

28MR HENDERSON:  No Your Honour.

29MR HIGHAM:  No Your Honour.

30HIS HONOUR:  Thank you Your Honour.  I thank counsel for their very considerable assistance today in writing and otherwise to the informant in the matter, who has made the effort to come all this way.  We cannot deal with these cases in Shepparton, as I wish we could.  We will shortly at the end of

312018, when they will have the best court in the State.  All right.  Anything further?  Mr  Hateley can leave the dock.

32MR HIGHAM:  Yes, Your Honour.

33HIS HONOUR:  He just has to sign this document and other documents. 

34MR HIGHAM:  Yes. 

35HIS HONOUR:  I am just signing the document saying that I am giving you a document, Mr Hateley.  You sign a document to say that you have got it and the undertaking, I will just explain it to you again.  The undertaking starts today and goes for six months.  You must be of good behaviour during the period of the undertaking.  You must attend a court if called upon to do so during the period of the six months that will occur if you are not of good behaviour.  Do you follow? 

36OFFENDER:  Yes.

37HIS HONOUR:  If you are of good behaviour, nothing happens, you keep working with Mr Webb and doing the right thing, then that will be the end of it.  The prosecution - I'll just add one last thing, you might need to do some things and I should have perhaps put you on a program to do various things relating to your drinking and your mental health.  Set about that yourself, that's what adults do. 

38You have signed that to indicate you understand the effect and conditions of it.  You will get a copy of it.  As I say, it brings the matter to an end.  I will just, on the transcript, indicate that you have signed a document being an acknowledgment of reporting conditions.  That will be sent to the Chief Commissioner of Police.  All right, thank you.  The reports of Ms Matthews and Mr  Cidoni and the letter of Mr Webb will be 1, 2, and 3.

39#EXHIBIT 1 -    Report of Ms Matthews.

40#EXHIBIT 2 -    Report of Mr Cidoni.

41#EXHIBIT 3 -    Report of Mr Webb.

42MR HIGHAM:  Thank Your Honour.

43HIS HONOUR:  If there's nothing further.  Mr Henderson, would you just mind remaining for a moment.  Mr Higham, feel free to leave and likewise Mr Hateley and his family and the like. 

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