Director of Public Prosecutions v Hateley, Steven Lewis
[2013] VCC 648
•3 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-13-00298
AT HORSHAM
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN LEWIS HATELEY |
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JUDGE: | HIS HONOUR JUDGE MURPHY | |
WHERE HELD: | Horsham | |
DATE OF HEARING: | 30 April 2013 | |
DATE OF SENTENCE: | 3 May 2013 | |
CASE MAY BE CITED AS: | DPP v Hateley, Steven Lewis | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 648 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr K. Doyle | OPP |
| For the Accused | Mr A. Marshall | Power & Bennett |
HIS HONOUR:
1 Steven Lewis Hateley, you have pleaded guilty to three counts of sexual penetration of a child under the age of 16. Maximum penalty, ten years' imprisonment.
2
The circumstances of the offences were set out in the Crown opening which was read in open Court earlier this week, and I incorporate by reference. In short compass, you, who were aged 27 at the time, having been born on
6 August 1984, developed a relationship with the complainant, who at that stage was aged 15, having been born on 1 April 1996. She was a local girl and you also are a local in Horsham.
3 The relationship commenced after you had seen her down at May Park, or in that vicinity, at a phone box with one of her girlfriends. There was a brief exchange and subsequently you accessed her Facebook page and put your name in as a friend.
4 In her VATE tape she said when you put your name up there as a friend she did not know what to do. Subsequently there was communications by text message between the two of you and you were introduced at some stage in the later part of 2011, some months after the first Facebook communication. You met at the Old Bowl, when she was with a friend of hers, and talked to and then talked to her on Facebook and that continued for some time. Then during the school holidays there were more exchanges between the two of you including late night outings and going to adventure parks and other places around Weir Park, including the river and the gardens. Sometimes a friend would accompany her and on other occasions it was only just the two of you. She was living with her father at the time and, after arranging to meet you through text messages, would sneak out of the house without his knowledge. That occurred on a number of occasions and involved her getting back home at very early hours of the morning, five o'clock, that sort of thing. It got to the stage where she was missing school because she had been up all night seeing you.
5 The relationship between the two of you deepened as you exchanged compliments with her about her appearance and spending more and more time together. You provided details of your existing relationship with Alana and the fact that you had a child and that you were having trouble with the relationship. Towards the beginning of 2012 you indicated that in fact Alana, your then girlfriend, was going to move out from you. Then at one stage when she had moved out, you went back to your own home with the complainant and then you were watching a video and then subsequently sexual activity commenced, including full intercourse, unprotected, to ejaculation. The following morning the same thing occurred. Count 1 is the first time, Count 2 is the second time. The complainant indicated in her VATE tape that she was feeling pain when all this was occurring and she said that the first occasion occurred in the school year of 2012. Then you took her home the following morning.
6 A further event occurred on 26 March 2012, which may have been two or three weeks later, or perhaps a longer time, she is not sure in her VATE tape, and again there was intercourse between the two of you, again involving ejaculation and various preliminary acts that are referred to in the Crown opening.
7 At the time you knew she was not 16 and you had discussed that with her and, as I said, her father was unaware of the relationship. She indicates in her VATE tape that she told her mother about the relationship and her mother had told her that she should break it off. It is not clear whether this was before there was any sexual activity, but she said in her VATE tape that she could not break it off. At one stage her father was trying to seize her phone and this prompted an argument. She said in her VATE tape that she texted you and you said to her, "I'll come down and give you some comfort," that is in Question 174 of the VATE tape.
8 On 3 April, the complainant told her mother she had been involved in sexual activity, and her father, and they went and gave statements to the police and she made a VATE tape.
9 On 6 April, you were interviewed in a record of interview. You denied any sexual activity, however you did admit that you had been involved with her in terms of the Facebook, she had been to your home and you had sat up in bed watching movies and hugged and kissed, but, as I said, you denied any sexual activity. You said at one stage, "We would have. It hadn't happened, it was getting to that." Subsequently the police found your DNA on some underclothes of hers and you were then charged. The matter came to a committal hearing. You did not contest the committal hearing. You were charged with 23 counts and a negotiated plea was arranged and you then pleaded guilty at the committal hearing.
The Seriousness of the Offences
10 This type of offence can occur in a wide variety of circumstances. The first matter to consider in terms of the seriousness of the offending is the respective chronological ages. The complainant was nearly 16, but she was still at school. The underlying purpose of this legislation is to protect teenage girls from themselves. While the age of 16 might be arbitrary, the fact that the complainant was just below that age does not lessen the seriousness of the matter.
11 Next, the age difference between you and the complainant was significant. You were aged 27 at the time, nearly 75 per cent older than her, being 11 and a half years older than her. That is a significant matter going to the seriousness of the offending here.
12 Next, the offences here involved unprotected sexual intercourse, involving ejaculation on three occasions. I accept that two of the occasions were on one night and the following morning and the third occasion was an indeterminate period later, possibly two weeks or maybe more.
13 There is no evidence before the Court of the impact of the offending on the complainant as she has now moved from the area. Notwithstanding that there is no such evidence, as indicated in Clarkson v. R [2011] VSCA 157, there is a presumption of harm to the complainant caused by premature sexual activity. At the time the complainant was living with her father and was sneaking out at night to see you. At some stage, as I have said, she told her mother that she was seeing you and her mother told her to end the relationship, but she was unable to do that.
14 The issue of consent was raised by your counsel. As noted in Clarkson, the issue is really one of ostensible consent because complainants under the age 16 are deemed not to be able to consent. Your counsel submitted that there was proper consent here and that was supported by the fact that the relationship developed over time. As I said, consent is not a defence here but the extent of consent and the nature of the context of the consent may be relevant to the seriousness and the culpability.
15 The prosecutor submitted that you had cultivated the complainant over a period with flattering comments about her, taking her for drives, including at one stage a drive up to Dimboola, taking her out at night late. There is also reference in her VATE tape to going to a deserted house somewhere around Horsham.
16 I accept that the relationship had been building up over a period, but it was in the context where you had told the complainant that you had broken up with your current girlfriend and the mother of your child. Further, the complainant, in her VATE tape, indicates at one stage she had a fight with her father who was seeking her phone and, as I have said, you offered to come over and give her comfort.
17 There was a power imbalance, as submitted by the prosecutor, between the two of you, which makes this offending serious. You were in a position to exploit the complainant by her vulnerability. You had cultivated her and then when you had temporarily separated from your then girlfriend, or she had gone away, you were then in a position to suggest to the complainant that she was to be your girlfriend and then propose sexual intimacy in your own home.
18 The sexual conduct itself here makes the offending serious. The complainant was obviously sexually inexperienced and you had full sexual intercourse with her on three occasions. You exposed her to pregnancy and sexually transmitted diseases. Your conduct exposed her to the harm that come from premature sexual activity. Your culpability for this offending is high. You were aware of the age of the complainant and admitted that you knew that the legal age for sexual activity was 16, yet you chose to proceed.
19 The prosecutor referred to the use of Facebook in relation to the cultivation of this relationship. I do not regard that as a significant element here. The complainant said in her VATE interview that when you first notified her as a friend on Facebook she did not know what to do. That shows her immaturity. Subsequently, the two of you met each other around various places around Horsham and then the relationship developed from there, mainly by text messages and then actual personal meetings between the two of you, so I do not see the internet or Facebook as a significant matter in this offending here.
20 Overall I regard this as serious offending with a high degree of moral culpability. The seriousness of this type of offending is set out in the decision of Clarkson where the Court of Appeal says:
“…the absolute prohibition on sexual activity with a child can be seen as having twin purposes. The first is to protect children from the harms caused by premature sexual activity and – to that end – to protect them from their own immaturity. On behalf of the community, Parliament has decided that those under 16 cannot meaningfully consent to sexual activity, even if subjectively attracted to the idea of participating in such activity. Secondly – and in order to advance the protective purpose – the prohibition is designed to deter those who might contemplate sexual activity with a person under 16.
21 Then it goes on with the reason for the provision:
“The first is the need to protect them from the consequences of pregnancies with which they are ill-equipped to deal from the physical, emotional and economic point of view. The second is the need to protect them from the grave physical and emotional harm which may result from sexual intercourse at such an early age.”
22 At paragraph 37 the Court says:
"…even where a young person does appear to wish to engage in sexual activity, ‘there is a duty cast upon others to refrain from encouraging or acting upon those wishes. The more mature the other person, the greater the degree of self-control which should be demanded of them.’
23 At paragraph 54 there is a quote from R v. Nguyen 124 A Crim R 477, a case involving a 23 year old offender and a 14 year old complainant, where the Court of Appeal says:
"It is apparent that a principal aim of the legislation is to protect children and young adolescents who are generally vulnerable to persuasive conduct of older and more mature persons from being sexually abused by them. This case is not one of consensual sexual behaviour between two young persons of comparable age. The applicant was more than 50 per cent older than the victim and of the two he was clearly the more intelligent and mature. Although the victim did not know the applicant’s exact age, he knew that he was a university student and therefore a good deal older than he was. Those matters, and the fact that the applicant was obviously socially more experienced, were likely to have impressed the victim and confirmed in his mind the applicant’s more dominant position
24 At paragraph 62, Justice Vincent’s decision in R v. Sulemanov [2007] VSCA 288, referable to the age of the complainant, is cited:
"The age of the victim of such an offence cannot, in my opinion, of itself constitute a mitigatory factor for sentencing purposes, although it may, in some situations be seen to aggravate its commission. The offence was created by Parliament to provide protection to young persons. That protection is not to be regarded as becoming less significant simply because the young person is approaching his or her sixteenth birthday. On the other hand, the younger, more vulnerable or less mature the victim is, the more heinous is the perpetrator’s behaviour. The disparity in the ages of the offender and the child is, accordingly, a relevant consideration."
25 I turn now to your prior convictions. This is not the first time you have come before the courts, but it is the first time that you have come before the courts for sexual offences. You have admitted that you have prior convictions going back to 2001 for using a telephone communication to harass a person. That apparently involved prank phone calls. You were given a fine without conviction of $1,000.
26 On 15 May 2002, for stalking, you were placed on a community-based order for six months and ordered to perform 150 hours community work. That was amended in a later order of the court, on 15 May 2003. You were also ordered to undergo assessment for alcohol and drug addiction.
27 On 4 September 2002, you were before the Horsham Magistrates' Court again for threatening serious injury, two counts; assault by kicking and assault police and you were convicted and fined $800.
28 The last matter before the court was on 17 May 2006, where, on counts of assault police on duty, you were sentenced to a two months' term of imprisonment, suspended for two years; criminal damage, $500 conviction; assault police on duty, $600 conviction; drunk in a public place, convicted and discharged.
29 Your counsel indicated that the offending in relation to the street and resist police offending was in the context of drinking. You only have limited memory of the second events, but the May '06 offences involved being drunk and going to buy alcohol, kicking down fences and then getting into a fight with the police. What he put to me on the plea is that you have in the past been involved in alcohol related activity, but that stopped in 2006 and I accept that you have not been before the court since 2006, which would indicate that you have taken some action to address the prior drinking problems.
30 I turn now to your personal circumstances. They are set out in detail in Dr Ong's report. He indicates that you come from a difficult family background. Your parents separated when you were seven. You have four siblings. Your parents were in a difficult relationship and you had a toxic relationship with your mother and have had nothing to do with your father for the last ten years. Although you have a difficult relationship with your mother, at one stage you were living in a bungalow at the back of her house. You have lived out of home since age 15. Your closest relationship appears with one of your sisters who is living in this area, so you are a person who has little family support.
31 You had difficulties at school and were bullied and eventually left school during Year 8, or got expelled. Since that time of course you have not obtained any occupational qualifications. Although you were sacked from one job for drinking on the job, you have had a number of jobs. You have been on a disability support pension since you were aged 23 for some form of mental illness, although you are not currently taking any medication.
32 Your personal circumstances in the period prior to this offending was that you were living with Alana and the two of you have a child. You are also the father of another child, about age seven, that you do not apparently have much to do with. You were having difficulties with your relationship with Alana and, as I have indicated, she had left the house at the time this offending had occurred. You are currently living separately from her, but you are providing her support and she is providing you support and you spend time at her house babysitting her child because she has got employment.
33 Turning in more detail to the report of Dr Ong, psychiatrist, he goes through your alcohol and drug history and notes that you have stopped drinking, you are not taking any psychotropic medication, there is no evidence of self harm, but, as I say, you have been placed on a disability support pension, you are physically fit, you denied previously using any cannabis, amphetamine or opiates, you have never been in custody. He notes that in his discussions with you about this offending you expressed remorse to him and shame for your conduct, but you did also at one stage say to him that you believed that the victim, the complainant in this matter, was pursuing you.
34 His conclusions are set out in p.8 of the report and I will just read a couple of the paragraphs. He describes, "An impoverished developmental history, characterised by early parental separation, a toxic relationship with his mother, bullying at school, living out of home at the age of 15 due to the abusive nature of the home environment, limited educational attainment and work only in semi skilled occupations. Mr Hateley describes symptoms consistent with social anxiety disorder (social phobia), where he has increased anxiety in social situations, whereby he feels he is being judged and looked upon by others. He thus becomes avoidant of such situations, withdrawing himself and this condition appears to be untreated. Whilst there was no clear evidence of an enduring personality disorder in Mr Hateley, he does have borderline personality traits, characterised by affective instability, fears losing relationships and impulsivity." He notes the history of problematic alcohol abuse. In relation to this current offending, he indicates that there is no evidence of underlying paraphilia or sexual deviancy driving your behaviour. He said, "it would appear that…a combination of [your] poor social skills, relative immaturity, dependent traits and difficult relationship at the time with [your] partner [has] contributed to the offending," and he notes your remorse.
35 What he then recommends in relation to your trying to reduce the risk of re-offending, that you would benefit from treatment for social anxiety disorder with psychological therapies and possibly medication, as well as assessment for a sex offender program. In the latter part of his report he indicates that due to your immaturity and social anxiety disorder and borderline personality trait, you will find a term of incarceration weighing more heavily than other people.
36 Your counsel put to me that you were relatively immature and on that basis this offending called for a non custodial disposition, by way of a community corrections order, or a short sentence of imprisonment followed by a community corrections order. I have considered his submission but I do not accept it having regard to the seriousness of the offence.
37 I turn to other matters relating to sentencing. You pleaded guilty at the committal, at the earliest opportunity, and thus you have facilitated the course of justice. It was an early plea of guilty and you are entitled to a significant benefit for that. I also accept there is evidence of remorse. You have expressed remorse and shame to Mr Ong. I accept that you are remorseful and have taken that into account.
38 The Crown submitted a sentencing range of three and a half years to five years with a non parole period of two to three years. Your counsel submitted, as I have indicated, that a community corrections order or at most a sentence of three months' imprisonment should be imposed. Your counsel referred to the Sentencing Snapshots which indicate that some of these offences are dealt with by way of non custodial dispositions, by way of community corrections order or suspended sentences.
39 The prosecution referred to the fact that suspended sentences are not available for this offending. The only particular case that was referred to was Nguyen which is referred to in Clarkson where a sentence of two years' imprisonment for a one off event, in a sense, was wholly suspended, although that offender had spent 37 days in custody. No particular case was put forward in order to provide some sort of yardstick for the sentence here.
40 I must consider your prospects of rehabilitation. The report of Dr Ong supports the proposition that your prospects of rehabilitation are guarded, in that you would benefit from treatment for your anxiety disorder and a sex offender program. In the light of his report I do propose a slightly longer than usual period of parole eligibility so that the authorities can put in place appropriate supervisory programs and support that will facilitate your resumption into society.
41 Overall the thrust of the submission by your counsel was that you were immature and that called for a non-custodial disposition. I have rejected that. The chronological age difference between the two of you, the fact that you have had two children and that you had been in a relationship, are factors which lead me to reject the proposition that you were so immature that this offending is not to be regarded as serious offending.
Purposes of Sentencing
42 The basic purposes for which a court may impose a sentence are punishment, deterrence both special and general, rehabilitation, denunciation and protection of the community. In sentencing I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any.
43 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society. Here general deterrence is an important consideration. There has got to be a signal sent that sexual relationships with underage girls are just not acceptable.
44 Specific deterrence has also some relevance given that although you have expressed remorse you still told Dr Ong that the complainant pursued you. Considerations of parsimony are also relevant. You have not been sentenced to imprisonment before and the sentence of imprisonment must be a sanction of last resort. As I said, I have also taken into account that you will be vulnerable in prison and I have ameliorated the sentence of imprisonment on that basis.
45 Denunciation is an important consideration in sentencing you, your conduct in this three separate counts of sexual intercourse with a 15 year old, unprotected, is uttered unacceptable and it is to be denounced comprehensively. I have moderated general deterrence due to your social anxiety disorder as identified by Dr Ong and the fact that you were on a disability support pension.
46 By reason of the Sentencing Act on Count 3 you will be sentenced as a serious sexual offender. The Crown did not call for a disproportionate sentence. In sentencing you I declare that protection of the community is the principal sentencing purpose. There is also a presumption of cumulation in relation to Count 3. I do not propose to order full cumulation having regard to the issues of totality and the fact of the three offence for which you have pleaded guilty are closely related in time.
47 The sentence of the court is as follows: Could you please stand.
Count 1 you are sentenced to two years’ imprisonment.
Count 2, you are sentenced to two years’ imprisonment.
Count 3, you are sentenced to two years’ imprisonment.
48 Count 1 is the base sentence and I direct that six months of the sentence on Count 2 and six months of the sentence on Count 3 be served cumulatively on Count 1 and on each other making a total effective sentence of three years.
49 I declare that I have sentenced you as a serious sex offender on Count 3 and order that be incorporated in the records of the court. I order a non-parole period of 20 months. I make a retention order that has been sought by the Crown. I declare that had you not pleaded guilty I would have imposed a total effective sentence of four years and a non-parole period of two years and nine months.
50 Consequent on these convictions you will be required to be entered on the Sex Offender Register and the registration is for life. So the relevant paperwork will be handed to you. That means that for life you must comply with the requirements of the register, that is very important, it means changes of address, changes of phone number, new tattoos, whatever, new cars, have all got to be notified to the sex offender registration authorities.
51 Are there any other matters, Mr Prosecutor?
52 MR DOYLE: No, Your Honour.
53 HIS HONOUR: I declare that I have taken into account all the matters put on your behalf by your counsel but as I say I cannot accede to a demand or submission by him that this be dealt with by way of non-custodial disposition, it is just too serious. I will stand down while the paperwork is prepared.
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