Director of Public Prosecutions v Hawking
[2020] VCC 1599
•2 October 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MALCOLM HAWKING (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE CANNON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 September 2020 |
DATE OF SENTENCE: | 2 October 2020 |
CASE MAY BE CITED AS: | DPP v Hawking |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1599 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Incest – Indecent act with child under the age of 16 years – Charges 13 and 14 course of conduct charges – Other charges representative charges - Uncharged acts as context evidence – Victim biological daughter - Relentless offending commenced when victim aged 14 years and vulnerable – Attempts to exact silence – Pre-text call - Dysfunctional background - Post traumatic stress disorder
Sentence:Convicted and sentenced to 15 years and 6 months’ imprisonment with non-parole period of 9 years’ imprisonment – Pre-sentence detention of 385 days declared as having already been served - s.6AAA Sentencing Act declaration – Sex Offender registration for life
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Roodenburg | Solicitor for Public Prosecutions |
For the Accused | Mr A. Malik | Gallant Law |
HER HONOUR:
1Malcolm Hawking[1], you have pleaded guilty to 13 charges of incest and one charge of indecent act with a child under the age of 16 years.
[1] A pseudonym.
2Incest has a maximum penalty of 25 years' imprisonment and indecent at with a child under the age of 16 has a maximum penalty of 10 years' imprisonment.
3The maximum penalties reflect the seriousness with which Parliament regards the offences and is a matter that I must take into account in sentencing you. A further indication of the seriousness of the offences insofar as incest is concerned is that the Sentencing Act 1991 now mandates that a term of imprisonment be served by an offender in your position.
4You were 32 years old when the offending commenced and 36 when it ended. You are now 40 years old.
5The victim, Abigail Hampton[2], was aged between 14 and 18 years during the offending. She is now 22.
[2] A pseudonym.
6Abigail is your biological daughter, but she only became aware of this when she was 14 years old.[3] Before this, Abigail resided with her mother, her stepfather, and two siblings. She had believed that her stepfather was her natural father.
[3] Statement of Abigail Hampton, Depositions p23, para 4.
7When Abigail was 14 years old her mother told her that you were her biological father. She first met you on 1 February 2012.[4] A short time after meeting you, Abigail began staying at your home on weekends. Your children from another relationship also stayed with you on some weekends.[5]
[4] Statement of Abigail Hampton, Depositions p24, para 5; Statement of Witness, Depositions p50, para 6 and 7.
[5] Statement of Abigail Hampton, Depositions p24, para 5.
8In April 2012, after an argument with her mother about whether she could continue to see you, Abigail moved into your home.[6] Your then partner and her child also resided at that address. The offending commenced soon after Abigail moved in with you.
[6] Statement of Abigail Hampton, Depositions p24, para 6; Statement of Witness, Depositions p50, para 9.
Overview of the Offending
9In terms of the overview of the offending, the Prosecution indicated that
Charges 13 and 14 are course of conduct charges.10Charge 13, a charge of incest, was put on the basis that you engaged in acts of penile penetration of the victim's vagina on a regular basis, at times daily, between 1 July 2012 and 11 March 2015, when you were living together in your home and at second location.
11Charge 14, another charge of incest, and a course of conduct charge, is put on the basis that you engaged in acts of penile penetration of the victim's vagina on a regular basis, at least several times per week, between 17 February 2016 and 31 October 2016, when you lived together in yet a third location.
12Both course of conduct charges incorporate particularised and unparticularised acts, as was set out in the prosecution opening.
13Further, there was uncharged conduct led as context evidence only, namely that:
a.you penetrated the victim's vagina with your penis when you and the complainant travelled interstate for a holiday in late 2012;
b.you penetrated the victim's vagina with your penis on a number of occasions when you and she travelled interstate for a holiday in November 2013;
c.in April 2015, when you and the complainant were living overseas, you engaged in penis/vagina intercourse;
d.while still overseas, on Abigail's 18th birthday, you took her out clubbing. You and she attended a strip club and you paid for her to get a private dance. While you, Abigail and the stripper were in a stall, you penetrated Abigail's anus with your penis.
Circumstances of the Offending
Charge 1 & 2 – the first occasion (1 July 2012 – 31 August 2012)
14I come now to the detailed circumstances of the offending. The basis for Charges 1 and 2 on the indictment are as follows. When Abigail moved in with you, she said you were always very caring of her and very affectionate. Each night she said you would come into her room to say goodnight and would ask for a 'proper hug', where she would sit straddled over your lap with her legs wrapped around you. While Abigail felt uncomfortable about this, she had noted that you were very affectionate with your own daughter and so thought that this was normal.[7]
[7] Statement of Abigail Hampton, Depositions p25, para 9.
15In July or August 2012, after moving in with you at your home, the victim developed feelings for another female student. Abigail became very upset about this while at school one day and told the school she was not feeling well and needed to go home.[8] You collected her from school, took her home and she confided in you. You reassured her and told her that you were bisexual but had not told anyone about this.[9] No one else was home at the time.
[8] Statement of Abigail Hampton, Depositions p26, para 10.
[9] Statement of Abigail Hampton, Depositions p26, para 11.
16You then gave Abigail a long kiss on the lips and told her that her lips were soft. This gives rise to Charge 1, indecent act with a child under the age of 16.[10] Abigail said that she laughed awkwardly as she did not know how to respond.
[10] Statement of Abigail Hampton, Depositions p26, para 11.
17You then lay her down on the bed and told her to come down and cuddle you. Abigail lay down and you went under the blanket and removed her pants. You also removed your pants and then inserted your penis into her vagina, giving rise to Charge 2, a charge of incest.[11] Abigail, who had not had sex before, lay still and waited for you to finish. She said that you asked if she was 'okay' and told her that you loved her. You continued to penetrate Abigail's vagina for about one minute before ejaculating. After you had finished, you told her not to worry about getting pregnant as you had had a vasectomy.[12]
[11] Statement of Abigail Hampton, Depositions p26, para 12.
[12] Statement of Abigail Hampton, Depositions p27, para 12.
18You also told Abigail this needed to be kept between the two of you or you would both be taken away and that if you ended up in gaol, someone would either kill or rape you as they would not understand.[13] Abigail recalled that she attended a doctor a short time later after this incident as she believed she might be pregnant, however she was not.
[13] Statement of Abigail Hampton, Depositions p27, para 13.
19Abigail recalls that within a few days of this incident, you began coming into her room most mornings before you went to work. At that time, you were working with a trucking company. And you came into her room at about 4.30 to 5 am. You would lie down with her and penetrate her vagina with your penis (Charge 13 - incest, course of conduct). The only times this occurred was on weekends when you slept in or when your then partner was home.[14]
Charge 3-5 – Incest (1 July 2012 – 30 June 2013)
[14] Statement of Abigail Hampton, Depositions p27, para 14.
20About four to six months after Abigail first met you, and after a school musical in about July 2012, Abigail began putting on weight. One night you suggested to her that you both should walk together at night so she could lose some weight. Following this suggestion, you and she began walking in the evenings.[15] On three occasions during those walks, you penetrated Abigail's vagina with your penis.
[15] Statement of Abigail Hampton, Depositions p28, para 17.
21On one occasion, you were in a tin shed where the football players would sit during a game, and Abigail stood on a bench. You stood in front of her and penetrated her vagina with your penis while you were both standing, giving rise to Charge 3, incest (Charge 3 – incest).[16]
[16] Statement of Abigail Hampton, Depositions p28, para 17.
22On a second occasion in this shed where you both lay down and you penetrated her vagina with your penis (Charge 4 – incest).[17]
[17] Statement of Abigail Hampton, Depositions p28, para 17.
23On another occasion, you both lay on the athletics track and you penetrated her vagina with your penis (Charge 5 – incest).[18]
Charge 6 – Incest (1 August 2012 - 3 January 2013)
[18] Statement of Abigail Hampton, Depositions p28, para 17.
24The basis of Charge 6 is that on one evening when you were home alone, you asked if anyone had ever 'gone down on her before?'. Abigail responded that no one had. You told her it would feel good and told her to relax, as she was visibly shaking as you went under the blanket.[19] You licked the outside and inside of the victim's vagina (Charge 6 – incest).[20]
[19] Statement of Abigail Hampton, Depositions p29, para 19.
[20] Statement of Abigail Hampton, Depositions p29, para 19.
25Over the following months, you continued to penetrate Abigail's vagina with your tongue. She said that after the first occasion, it happened about once per week during the period of offending. This information was led by way of uncharged acts in order to place your charged conduct in its correct context.[21]
Charge 13 – Incest, course of conduct charge (1 July 2012 – 11 March 2015)
[21] Statement of Abigail Hampton, Depositions p29, para 19.
26In relation to Charge 13, I was told that in addition to the part of the conduct which was previously referred to, that is the first time that you sexually penetrated the complainant's vagina with your penis.
27That in early 2013, you and your then partner broke up. Your then partner said that your relationship issues stemmed from the relationship you had with Abigail, as you behaved as though Abigail was your partner.[22]
[22] Statement at Depositions p58, para 26.
28On 3 January 2013, you and Abigail moved into a home in another location with a friend of yours to give your then partner the opportunity to move out[23]. While there, you slept together in a queen-sized bed in a spare room.[24] Throughout this period, you continued to penetrate Abigail's vagina with your penis early in the morning before you went to work. Abigail said that by this time, it just felt like you and she were in a normal relationship and not related. She said that you and she would have penis/vagina sex often, she could not recall skipping a day at this time.[25]
[23] Statement at Depositions p57, para 21.
[24] Statement of Abigail Hampton, Depositions p30, para 20.
[25] Statement #2 of Abigail Hampton, Depositions p42, para 7.
29After about three weeks, when your then partner had left the property, you and Abigail moved back into your house.[26] Abigail had her own bedroom but only stayed in that room when her siblings came to stay. Otherwise, she shared a bed with you.[27] You continued to have penis/vagina intercourse throughout that time, both in the morning and at night,[28] and this continued until you moved to overseas on 11 March 2015. On occasions, you would put pornographic movies on for you both to watch while you had sex.
Charge 7 – Incest (1 February 2013 – 14 November 2013)
[26] Statement at Depositions p57, para 21.
[27] Statement of Abigail Hampton, Depositions p30, para 21.
[28] Statement of Abigail Hampton, Depositions p30, para 21.
30In relation to the basis of Charge 7, I was told that on one occasion when you moved back to home address and Abigail was menstruating, you penetrated her anus with your penis (Charge 7 – incest).[29]
[29] Statement of Abigail Hampton, Depositions p30, para 21.
31Abigail recalled this occurring on two occasions while you were living at your home, the further instance of this was relied on as an uncharged act for the purposes of context only (uncharged act, context).[30]
Uncharged acts, Interstate (November 2013)
[30] Statement #2 of Abigail Hampton, Depositions p42, para 7.
32In November 2013, you, and the complainant, your two children, and another family travelled interstate together. During that two-week holiday, you penetrated Abigail's vagina with your penis on a number of occasions.[31] As I have said previously, this alleged by way or led by way of uncharged conduct and are context evidence only.
Charge 8 – Incest (18 December 2013 – 18 December 2014)
[31] Statement of Abigail Hampton, Depositions p31, para 23.
33On an occasion at your home when Abigail was 16 years old, you purchased a strap-on penis and had her wear it. While she was wearing it, you had her penetrate your anus with the strap-on penis (Charge 8 – incest).[32]
Charge 9 – Incest, representative charge (1 July 2012 – 11 March 2015)
[32] Statement of Abigail Hampton, Depositions p30, para 21.
34The basis of Charge 9 is as follows. Charge 9 is a representative charge of incest, where the occasion nominated for the purposes of sentencing you is the first mentioned occasion. On this occasion, in the shed of your home, Abigail recalls you penetrating her mouth with your penis. You ejaculated into her mouth (Charge 9 – incest).[33]
[33] Statement #2 of Abigail Hampton, Depositions p41, para 4.
35Abigail recalls you penetrating her mouth with your penis on about ten occasions during the period that you offended against her, and that this occurred both before you moved to the second location and when you moved back to your house. (representative charge for 10 occasions). On each occasion, you ejaculated into her mouth. I will say more about how I sentence you in relation to a representative charge later on.
Charge 10 – Incest (1 December 2014 – 11 March 2015)
36The basis for Charge 10 is that on one occasion before you moved overseas on 11 March 2015, you and Abigail went for a drive to a beach. You parked the car and went for a walk along the beach before each of you removed all your clothes and went swimming.[34] You came out of the water and you penetrated Abigail's vagina with your penis while you lay on the sand (Charge 10 – incest).[35]
Uncharged acts, Overseas (April 2015 – December 2015)
[34] Statement #2 of Abigail Hampton, Depositions p42, para 9.
[35] Statement #2 of Abigail Hampton, Depositions p42, para 9.
37In January 2015, you, Abigail and Abigail and your two other children went overseas for a week and stayed with your uncle and aunt.[36]
[36] Statement of Abigail Hampton, Depositions p31, para 24.
38On 11 March 2015,[37] you moved to overseas. Abigail decided to finish school before joining you. During the week she resided with her half-brother, and his mother and on the weekends, she stayed with friends.[38]
[37] ROI Q&A 320.
[38] Statement of Abigail Hampton, Depositions p31, para 26.
39However, in about mid-April 2015, Abigail decided to move to overseas with you before finishing school. She went and lived with you and your aunt and uncle.[39] While living overseas, you and the victim shared a bed and continued to engage in sexual conduct, having both penis/vagina sex and giving each other oral sex (uncharged acts, context evidence only).[40]
[39] Statement of Abigail Hampton, Depositions p31, para 27.
[40] Statement of Abigail Hampton, Depositions p32, para 27.
40In July 2015 while still overseas, Abigail moved to her own place. You would visit, and you would have penis/vagina sex and give each other oral sex (uncharged acts, context evidence only).[41] You moved to the same location a month or so after and Abigail moved in with you.
[41] Statement of Abigail Hampton, Depositions p32, para 28.
41After a few weeks of living overseas with your parents, you and Abigail moved into a caravan on your brother's property. While living in the caravan, you shared a bed and continued to engage in sexual conduct with the victim (uncharged acts, context evidence).[42] Eventually, you both moved into a room in the house at that address.[43] Again, the evidence was led by way of uncharged acts, contextual evidence.
[42] Statement of Abigail Hampton, Depositions p32, para 30.
[43] Statement of Abigail Hampton, Depositions p33, para 31.
42Abigail got a job and started going to the gym for extensive periods, so she spent less time at home and began avoiding having sex with you.[44]
[44] Statement of Abigail Hampton, Depositions p33, para 32.
43On Abigail's 18th birthday in December 2015, you took her clubbing for her birthday. You took her to a strip club and paid a woman to do a private dance for her. Whilst you were in a private stall and the woman danced, you penetrated the victim's anus with your penis (uncharged act, context evidence only).[45]
[45] Statement of Abigail Hampton, Depositions p33, para 33.
44Abigail returned to Australia for a holiday on 24 December 2015 and stayed with her friends.[46] She ended up remaining in Australia from that time, as she lost her passport.
[46] Statement of Abigail Hampton, Depositions p33, para 35.
45After returning from overseas, Abigail resided with her best friend.[47] You returned to Australia on 13 January 2016.
Charge 11 – Incest (30 January 2016 – 31 January 2016)
[47] Statement #2 of Abigail Hampton, Depositions p43, para 12.
46The basis for Charge 11, a charge of incest, is as follows. On 30 January 2016, you, Abigail and you two other children were holidaying together. You camped in a tent for one night.[48] While Abigail did not recall anything sexual happening with you on this trip, you recall that you penetrated her vagina with your penis whilst in the tent (Charge 11 – incest).[49]
[48] Statement of Abigail Hampton, Depositions p34, para 36.
[49] ROI Q&A 229-240.
47Your daughter, Abigail’s half-sister, recalls going on this camping trip. She remembers that you and Abigail slept together on a mattress in the tent. She woke during the night and observed you and Abigail topless, with your bottom halves covered by a blanket.[50] She complained to her mother about what she had observed on this trip.[51]
[50] VARE, Depositions Q&A 135-138, 167, 172, 188-189.
[51] Statement at Depositions p61, para 15; VARE at Depositions Q&A 197-199.
48She also told her mother that Abigail would never stay in her own room at home but was always in her father's bedroom.[52] At some point, her mother contacted you to ask why you were sharing a room with Abigail. You denied that you were doing this.[53]
Charge 12 – Incest (13 January 2016 – 17 February 2016)
[52] VARE, Depositions Q&A 93.
[53] Statement at Depositions p62, para 16.
49The basis of charge 12 is as follows. One night while Abigail was residing with her best friend, you drove to their house and you and the victim went for a drive. You parked near a tennis club. You went for a walk and penetrated Abigail's vagina with your penis (Charge 12 - incest).[54]
Charge 14 – Incest, course of conduct (17 February 2016 – 31 October 2016)
[54] Statement #2 of Abigail Hampton, Depositions p43, para 12.
50Charge 14 is a course of conduct charge in relation to incest. The base for Charge 14 is as follows. On 17 February 2016, you and Abigail moved to new address .[55] Your other children would come and stay every second weekend. They shared a room and Abigail had her own room.[56] You continued to engage in sexual conduct with Abigail at this address, although it was less frequent - about three times per week.
[55] Residential Tenancies Bond Authority records, Depositions p247.
[56] Statement of Abigail Hampton, Depositions p34, para 35.
51In August 2016, Abigail commenced a relationship with another male.[57] Initially, Abigail and you were still having penis/vaginal sex, but over time this diminished as Abigail's relationship with this person progressed.[58] Abigail recalls that the last time she had penis/vagina sex with you was in October 2016.[59]
[57] Statement at Depositions p46, para 12.
[58] Statement of Abigail Hampton, Depositions p35, para 37.
[59] Statement of Abigail Hampton, Depositions p35, para 37.
Complaint
52In early 2017, Abigail moved in with her new partner.[60] She gave birth to their first child in April 2018.[61] Abigail remained in contact with you throughout this time.
[60] Statement of Abigail Hampton, Depositions p35, para 38; Statement at Depositions p46, para 14.
[61] Statement of Abigail Hampton, Depositions p35, para 40.
53When Abigail’s daughter was about four to six weeks old, she broke down in the middle of the night and told her partner that he needed to understand her and that when she was 14, her dad came into her bed and had sex with her.[62] She told her partner that her dad had sex with her from when she was 14 until she was 18.[63]
[62] Statement of Abigail Hampton, Depositions p36, para 40.
[63] Statement at Depositions p47, para 16.
54In January 2019, Abigail sent you a message, advising you that she did not want any further contact with you.[64] Abigail’s partner told her that he had later received a message from your new partner indicating you had told her about your 'relationship' with Abigail.[65] Your new partner had asked Abigail to clarify what had occurred and Abigail sent her a text message explanation.
[64] Statement at Depositions p47, para 18.
[65] Statement of Abigail Hampton, Depositions p36, para 41.
55In early 2019, you called your other daughter. She was with her mother at the time and they could both hear the call. You stated that you had done some inappropriate things with Abigail but did not go into detail other than to say that you had done things that no father should do to his daughter. You said that you could not have any more contact with your other daughter for her own safety and protection.[66]
[66] Statement at Depositions p63, para 21-22; VARE at Depositions Q&A 315-325.
56A short time after this call, your other daughter’s mother identified an aunt of Abigail's on Facebook. She contacted her and told her that you and the victim had been in an incestuous relationship, that she was going to the police and that Abigail would need support.[67] She attended a Police Station the following day to report the matter.
[67] Statement at Depositions p63, para 26.
57Following this call, the victim's aunt contacted Abigail and said that she had found out about her sexual relationship with you. She encouraged Abigail to report it to police and accompanied her to the local police station.[68]
[68] Statement of Abigail Hampton, Depositions p36, para 42.
Investigation and Interview
Pretext Calls
58In terms of the investigation and interview concerning this matter, Abigail contacted you by phone on 11 June 2019 and recorded that conversation.
59In the course of that conversation[69], you stated that:
a.you never raped her against her will;[70]
b.agreed she was under 18 at the time;[71]
c.you said she needed to be careful because she was over 18 and she could go to jail as much as you could;[72]
d.you said because you and the victim continued to have sex after she turned 18, it meant she was liable and could get a prison sentence as much as you could;[73] and
e.you also said that you were sorry.[74]
Police Interview
[69] Transcript of pretext call, Depositions pp253-278.
[70] Transcript of pretext call, Depositions p269.
[71] Transcript of pretext call, Depositions p269.
[72] Transcript of pretext call, Depositions p270.
[73] Transcript of pretext call, Depositions p271.
[74] Transcript of pretext call, Depositions p278.
60Police attended at your workplace on 13 September 2019, where you were arrested and taken to a Police Station. You took part in a record of interview.
61Excerpts from that interview are set out in the prosecution opening - and I will not repeat all of these - but essentially, you made full admissions to your offending, including admitting to one offence that the complainant did not recall, which gives rise to Charge 11. However, you also said a number of things which have given me cause for concern.
62During the interview, you told police, inter alia, that is amongst other things:
a.When Abigail moved in with you, she told you she had feelings more towards girls than boys and you comforted her. Then she kissed you and it was very uncomfortable;[75]
[75] ROI Q&A 38, 56-59.
b.You said that you and she engaged in sexual activity after that. You had said 'no' but Abigail assured you that she would not tell anyone, and you felt like if you said 'no', she would tell her mum what had happened. You said you felt backed into a corner;[76]
[76] ROI Q&A 39.
c.You told police you moved overseas to get away from what was happening, but Abigail then came over overseas and it continued over there;[77]
[77] ROI Q&A 41-42.
d.You said every time it happened, you would say, 'You have to stop, I can't do this, it shouldn't happen', and you would feel like she put you in a position where you could not get out of it;[78]
[78] ROI Q&A 42.
e.You also said Abigail had been the worst thing in your life. She scared the shit out of you;[79]
[79] ROI Q&A 44, Depositions p292.
f.You said you made a mistake to allow something happen that should not have;[80]
g.The sexual activity between the two you went on until she was 19;[81]
h.You said that when you lived in your house, the sexual activity would happen regularly when Abigail would come into your bedroom and get into your bed a few times a week, and then she started getting in your bed every night;[82]
i.You said while you and she were residing in another location, the sexual activity continued, and Abigail would come into your bed every single night and you and she had penis/vagina sex multiple times each week;[83]
j.You said you continued the relationship because you didn't know how to get out of it;[84]
k.You said that she asked you to engage in anal sex with her once or twice. You said it happened on maybe six occasions in the bedroom at the house in this other location;[85]
l.You said that she used a sex toy on one occasion to penetrate your anus;[86]
m.You also said you ejaculated every time you had sex with Abigail, either in her vagina, her mouth or her anus;[87]
n.And that Abigail told you she loved you continuously and she would instruct you and ask you to do sexual things;[88]
o.And she told you not to use protection because you had had a vasectomy and it did not feel as good;[89]
[80] ROI Q&A 44, Depositions p293.
[81] ROI Q&A 72.
[82] ROI Q&A79.
[83] ROI Q&A 124-125.
[84] ROI Q&A 131.
[85] ROI Q&A 133-135.
[86] ROI Q&A 152.
[87] ROI Q&A 155-163.
[88] ROI Q&A 169-170.
[89] ROI Q&A 181-182.
63Mr Hawking, your offending is most serious and is deserving of a strong punishment, a punishment which is just in all of the circumstances and your conduct must be strongly denounced. You commenced offending against your daughter when she was only 14, and very soon after she moved in with you and your family. You first offended against her when you knew very well that she was upset and was in a most vulnerable state, and your offending against her thereafter was relentless. Further, you effectively exacted her silence from very early on, frightening her into saying nothing by telling her that there would be harsh repercussions for you, and that she would be taken away, in circumstances where she had found refuge in your home, having left her mother's, you exploited her vulnerability in this regard to exact her silence.
64You were the adult and you were her father, a person she was entitled to look to for protection and guidance. It does not matter, in my view, that the victim had recently come into your life. You knew very well how you ought to have behaved toward her, and you breached the trust that not only she, but her mother had placed in you. You defiled her teenage years with a relationship that was completely inappropriate, warping her notions of what was normal and what was not, and depriving her of the ability to engage in age appropriate relationships that were also appropriate to her age and stage.
65You again tried to exact her silence when you spoke with her in the pretext call, by telling her that she would also be in trouble with the law, which further aggravates your offending.
66Further, like many who offend against children, in the record of interview, you sought to blame the victim for your offending, painting yourself as some helpless victim, who she controlled and directed.
67I take into account the impact on the victim in this matter. The victim attended the plea hearing and her victim impact statement was read aloud, save for a part that was subsequently deleted by the Crown.
68However, she spoke of the initial delight that she had when she met you, as her stepfather did not treat her well and she felt that finally she would have a good father figure. She trusted you not to hurt her and to love her as a father should. She said that she let her guard down with you. She was not used to parents being tactile and so at first, she thought that your affection in this regard was normal. However, she said that you took away her voice, her freedom and her innocence. She said that she was afraid to complain as she was afraid that her new life with her new friends would be taken away from her, and she would have to return to her mother, which she did not want to do. Whilst at school, she said that she did not know who to trust and started disrespecting teachers at school. She learned to make up lies on the spot to make sure no one would ever find anything out. She said that she had to keep the secret in respect of your offending for six years, and had trouble trusting anyone. She spoke of her anguish when she discovered that she was pregnant and the danger that she perceived her child might be under if she did not speak out. She also said that her relationship with her partner suffered as she experienced bouts of anger, and that she suffered sleeplessness, and found it difficult to work as she would often break down in tears. She became depressed to the point of having suicidal thoughts, and she spoke of going without food or not washing for days, or else binge eating at times. She said that the past few years had been far from easy and she still had days when she could not face leaving the house or where she heard or smelt something that will remind her of your offending against her. She said, 'You took a part of me and turned off a light in me that was already flickering. I was not yours to take. Inside of me, I was an innocent girl while I laid there lifeless with the weight of your inhumanity pushed against me, you took advantage of my silence'.
69Mr Hawking, these are the very real effects of your offending against your daughter, and I take them into account in sentencing you.
70In your favour, you have no prior or subsequent convictions, and I have read a number of character references in support of your otherwise good character. I give some weight to these references in your favour but, as I said at the plea hearing, your character needs to be seen against a background of offending against your daughter for a lengthy period, and must also be seen in the context of the things you said to the victim to silence her, and your tendency to victim blame. Having said all of this, you are still entitled to a degree of credit for your 'otherwise good character'.
71I allow for a significant discount in the sentence that you would otherwise receive in circumstances where you were prepared to plead guilty to appropriate charges at an early stage. In taking this approach, you have saved the witnesses, especially the victim, the time and trouble of giving evidence and you have saved the community the time and expense of contested proceedings. Further, you admitted to committing an offence that the victim did not complain about, and you made full admissions to the police, albeit that these were coloured with victim blaming.
72I accept that you are remorseful for what you have done, although you have quite a way to go in developing appropriate insight into the seriousness of your offending, how it has impacted on the victim, and taking full responsibility. Having said this, I have also taken into account that you raised alarm with the mother of your other daughter, saying that you ought not see her any more, and you did ultimately apologise to the victim in the pretext call.
73I take into account your background, which is a most unfortunate one for the most part:
74You were born in Australia in 1979 and your parents separated shortly after your birth. You were left in the custody of your mother, who you have described as being erratic and impulsive, and suffering from a mood disorder. She abused drugs and alcohol. From a young age, you were exposed to drug use and violence including sexual violence, at the hands of your mother and also at the hands of men that she brought into the household. I was told that she would prostitute herself and you in exchange for drugs.
75You also spent time with your father and paternal grandparents overseas. According to your paternal grandmother, you experienced a good deal of instability due to your being removed by 'child services' from your mother's care from time to time as she was associating with gangs, and you also spent time in the care of your grandmother, but toing and froing from her to your mother.
76You left your mother's home when you were 15 but continued to have some contact with her until you were 22. The relationship continued to be an abusive one, with your mother wanting money for drugs. You were physically and sexually assaulted once more at the age of 22 by a man who was at your mother's home. This was the last time you had contact with your mother. It was not said by your counsel that I ought treat your upbringing as a matter which bore on your moral culpability when it came to sexually assaulting your daughter. I do not do so, but I have taken into account the dreadful upbringing that you have endured in a general way, and it is little surprise that you evidently developed some mental health issues from that time.
77In terms of your education and work history, I was told that you left school at the beginning of Year 10, having experienced a good deal of instability with your schooling, as you moved from school to school fairly constantly over the preceding years. This negatively impacted on your social skills as well.
78You undertook an apprenticeship to become a boiler maker and achieved that qualification.
79When you were 18 years old, you joined the army and initially you worked as an engineer, then as a paratrooper. You were deployed to various locations overseas. You had the gruesome job of having to clear areas of dead bodies. When you were 22 or 23, you left the army and resumed work as a boiler maker.
80I was told that you went on to complete an advanced diploma in Mechanical Engineering and that you worked in mechanical engineering up until the time of your arrest. I understand that you were promoted to a position of responsibility at the business where you were employed prior to your arrest.
81Your strong work ethic is a matter which goes in your favour when assessing your prospects of rehabilitation.
82You commenced drinking alcohol when you were 14 and abused it for a good deal of your adult life. Your alcohol intake increased when you were in the army and you were prone to binge drinking for a good while. However, about three years ago, you stopped drinking, which you attribute to the help and support of your current partner.
83You have had a number of age appropriate relationships over the years, some of which have produced children. You no longer have any contact with your other daughter, but you do have contact with your son.
84You have also used drugs, commencing with cannabis in your mid-teens, and you used a number of other drugs when you were in the army. However, you have not used drugs for several years. It was not suggested that your alcohol or drug use had any role to play in respect of your offending.
85In terms of your mental health, it was not submitted that there was any impairment of mental function which impacted on your moral culpability. In those circumstances, I find your moral culpability to be high.
86Reliance was placed on a report from Dr Barth, psychologist, in the following ways:
87That you attempted suicide when you were 14 and experienced ongoing suicidal ideation through your teenage years.
88Your counsel submitted that your traumatic experiences in your formative years had led 'to an underdevelopment of appropriate social skills.' He referred to
Dr Barth's opinion that you '(had) been a very interpersonally dependent person for much of (your) life and this (had) culminated in (you) experiencing feelings of intense dejection when the quality in (your) intimate relationships (had) declined'[90].[90] Report of Dr Barth, at [47].
89Your counsel referred to your explanation for the offending, that you cited the deterioration of your relationship with your then partner, and experiencing feelings of loneliness and dejection. He referred to Dr Barth's opinion in this context, quoting the following, an extract of Dr Barth's opinion was as follows, that you 'gravitated towards an underage "partner" who would be less likely to challenge his fragile self-esteem during a period when he was experiencing intense intimacy problems in his relationship'.
90I must say that I do have some difficulty with this explanation for your offending, when one considers the account of your then partner as to her observations of you and the victim, which effectively drove a wedge between you and your then partner, from her perspective. It seemed to me that your then relationship suffered because you decided to sexually offend against the victim. Also, in the past and now, you have been able to engage in age appropriate relationships, such that if you were not satisfied with your relationship with your then partner, one would have thought you might have looked to another age appropriate relationship, rather than your teenage child. Further, you engaged in sexual activity with the victim very soon after she moved into your household.
91In any event, it is to be hoped that matters in this regard will become clearer in time and with the assistance of the sex offenders' program and any other program that you are able to undertake whilst in gaol, which helps to develop insight and further exploration of your reasons for offending.
92Your counsel submitted that, 'While not causative, the circumstances of
Mr Hawking's disadvantaged background, may help explain his lack of social maturity such that allowed his emotional connection with his daughter to progress into a sexual relationship.' Again, this might be so but it is not at all clear, and your background, psychological make up and motivations warrant a good deal of further exploration, examination and treatment'.93Dr Barth assessed you as being at moderate risk of re-offending, which I also take into account, but also factor in that you are yet to complete the sex offenders' program which ought serve to help reduce that risk. You have expressed a willingness to undergo that program, and indeed any program which helps with your rehabilitation, and that is a good thing, as you continue to have views in respect of the offending, as contained in Dr Barth's report, which are of concern.
94Dr Barth diagnosed you as suffering from post-traumatic stress disorder, dating back to your childhood trauma, although you are also suffering symptoms of depression due to your current predicament. I allow for the fact that time in custody for you has been and will be harder than it would otherwise be. I make a further allowance in this regard due to the fact that you suffer from epilepsy, and have recently suffered or you have suffered a number of seizures whilst on remand, which are brought on in times of stress. I was told that you have previously suffered from oesophageal cancer, but that this has been successfully treated.
95I have also allowed for the fact that this is your first time in gaol, and that some of the restrictions which have had to be put in place since March this year have had some impact on you, although, in view of the most helpful affidavit provided by Ms Hosking, Assistant Commissioner, Sentence Management Division, Corrections Victoria, these impacts have not overly affected you, especially as you had previously declined engaging in a number of programs of an educational nature which had been on offer. However, I do accept that whilst on remand, and perhaps into the future because of COVID-19, you may not be able to receive the level of programs for rehabilitation that you might need. I accept that whilst on remand, and since the COVID-19 restrictions have been put in place, you have not been able to receive face to face visits with your partner and son, and that your freedom of movement outside your cell and in respect of your ability of work may have been somewhat impacted, although I understand that you are still able to work in the number plate section of the remand, the place where you are remanded. I have also factored in that you are likely to continue to be impacted by the COVID-19 restrictions in a similar way once you are sentenced today and to the extent that I have already postulated.
96In view of the extent and nature of your offending, your level of insight into it, and Dr Barth's assessment of your risk of re-offending, but also factoring in your preparedness to undergo the sex offenders course, your lack of prior or subsequent convictions, your remorse, strong work ethic and support from your present partner, I assess your prospects of rehabilitation as being guardedly fairly good. I place some more than minimal, but less than moderate weight on specific deterrence and protection of the community. Strong weight must attach to general deterrence in a bid to deter others from behaving as you have.
97In sentencing you in respect of the course of conduct charges, I have borne in mind the approach that ought be taken to these charges, that is, that you are to be sentenced for the totality of the offending encompassed by the particular charge and it is to be expected that therefore the sentence that I impose will be greater than it would be for one instance of the offending or, for that matter, for a sentence in respect of a representative charge. Charge 13 encompasses offending that occurred after the offending comprised in Charges 1 and 2, and which occurred over a period of two and a half years. It incorporates the incidents of penis/vagina penetration that occurred regularly, at times daily, in the home of the victim, when she resided with you at your home and at another location.
98Further, the principle of totality is also to be applied in your case, notwithstanding that after the sentences imposed in respect of Charges 1 and 2, you are to be sentenced as a serious sexual offender and there will be a presumption of cumulation. The prosecution does not submit that a disproportionate sentence ought be imposed in order to protect the community. In applying the principle of totality, I have had to modify the degree of cumulation rather significantly. I have borne in mind that Charges 3 to 5 (incest), and Charge 10 occurred in the same time period as Charge 13 and involved the same type of sexual penetration as Charge 13, albeit that Charges 3 to 5 occurred at a local park, and Charge 10 took placed at the beach. Charges 6 to 9 (incest) also occurred in the same period as Charge 13 and also took place in the home of the victim, but each of these charges relates to a different form of sexual penetration than that alleged in Charge 13.
99Charge 14 is another course of conduct charge which occurred over a period of seven and a half months and incorporates all of the penis/vagina penetrations that occurred at least several times per week in the home of the victim when she resided with you in yet another location.
100Charge 12 (incest) falls within the same timeframe as Charge 14; however, it relates your offending at a local park.
101In sentencing you in respect of Charge 9, which is the representative charge, I am mindful of the need to only sentence you in respect of the nominated occasion, as opposed to all of the occasions, but I am able to factor in the impact on the victim in respect of all of the occasions represented in that charge. Also, I sentence you on the basis that the nominated occasion is not an isolated instance of this kind of offending, lest it be said otherwise.
102I make it clear that I have not sentenced you in respect of any of the uncharged conduct that was relied on by the Crown for the purposes of context only, and I have only had regard to it in this way.
103I have also had some regard to current sentencing practice and the recent pronouncements in the Court of Appeal and the High Court in respect of the inadequacy of past sentences for the crime of incest. Current sentencing practice is but one sentencing consideration and it is not a controlling one when it comes to sentencing you.
104I have had some regard to your counsel's submissions in respect of the absence of some aggravating features that one might see in cases such as this, but as the learned prosecutor submitted, and in accordance with case law, not a great deal can be taken from this in your favour. I must sentence you in respect of what you have done, and not in respect of what you have not done.
105Your counsel submitted that a lengthy period on parole would be appropriate in your case. I have done what I can in this regard, all other matters considered, as it would be in your interest and in the interest of the community for you to have the chance to re-enter the community when properly supervised. However, ultimately, it will be up to you and the parole board as to what happens in this regard, and I cannot and will not speculate about this.
106In the end, I have arrived at a sentence which, in my view, does justice to all relevant sentencing principles and the weight which must attach to these.
107You are convicted of the offences.
108By reason of your convictions for these offences, you are to be recorded as a registrable offender for life. You must report your personal details to the Chief Commissioner of Police annually for the rest of your life. You must first report these details within seven days after your release from custody. Do you understand this, Mr Hawking? Sorry, if we could just unmute Mr Hawking? Do you und that, Mr Hawking?
109OFFENDER: Yes, Your Honour.
110HER HONOUR: All right, thank you. I record for the purposes of transcript in these proceedings that you have said that you do understand this, and this will be accepted by the court instead of your signature in respect of the written notice which would usually be given. Further, details in writing of the reporting conditions required will be served upon your legal representatives via email by my associate, and I will ask that your counsel undertake to explain those written details to you within the next seven days. Mr Malik, you give that undertaking, do you?
111MR MALIK: Yes, I do, Your Honour.
112HER HONOUR: Thank you. I record that the undertaking has been given audio-visually. I now proceed to sentence you in relation to the offences. You are sentenced to the following periods of imprisonment:
113Charge 1, six months.
114Charge 2, eight years.
115At this point, I declare that you are a serious sexual offender, and this will be noted in the records of the court. The presumption of cumulation applies from now on.
116Charge 3, eight years.
117Charge 4, eight years.
118Charge 5, eight years.
119Charge 6, eight years.
120Charge 7, eight years.
121Charge 8, eight years.
122Charge 9, eight years, six months
123Charge 10, eight years.
124Charge 11, seven years.
125Charge 12, eight years.
126Charge 13, 12 years, which will be the base sentence.
127Charge 14, nine years, six months.
128I direct that 12 months from the sentence on charge 14, three months from the sentences on each of Charges 3 to 8, inclusive, and charges 10 and 12, and further, that one month from the sentence on Charge 11, and five months from the sentence on Charge 9 be served cumulatively with each other and with the base sentence.
129This produces a total effective sentence of 15 years, six months, and I direct that you serve nine years before becoming eligible for parole.
130If not for your pleas of guilty, I would have sentenced you to 20 years' imprisonment, with a non-parole period of 16 years.
131I declare that you have already served 385 days by way of pre-sentence detention, which will be reckoned as already served.
132Now, counsel, is there anything arising from those sentencing remarks that you wish to raise at this time?
133MS ROODENBURG: No, thank you, Your Honour.
134MR MALIK: No, thank you, Your Honour.
135HER HONOUR: All right. Mr Malik, did you want a chance to speak with your client over the video-link when we adjourn the court?
136MR MALIK: If I could. Thank you, Your Honour, together with Ms Cassamatis?
137HER HONOUR: Yes, all right. Well, Mr Taylor, if you could leave
both Defence Counsel and Instructor and Mr Hawking on the air, and I will adjourn the court.138MR MALIK: As Your Honour please.
139HER HONOUR: Thank you.
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