Director of Public Prosecutions v Hawthorne (a pseudonym)
[2022] VCC 2063
•23 November 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-18-01925
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ARTHUR HAWTHORNE (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE CHETTLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 to 26 August 2022, 16 November 2022 | |
DATE OF SENTENCE: | 23 November 2022 | |
CASE MAY BE CITED AS: | DPP v Hawthorne (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2063 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Sex Offenders Registration Act 2004
Cases Cited:R v Verdins [2007] VSCA 62
Sentence: Imprisonment, total effective sentence – 19 years. Non-parole period of 13 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Fallar | Office of Public Prosecutions |
| For the Accused | Mr R. Thyssen | Slater & King |
HIS HONOUR:
1
Arthur Hawthorne[1], you have been convicted by a jury of one charge of make threat to kill, one charge of false imprisonment, one charge of indecent assault and
three charges of rape.
[1] A pseudonym
2The facts of your offending are set out in Exhibit A, the prosecution plea summary following verdicts. Your counsel agree that I could treat that document as a summary of the evidence relevant to your convictions. I incorporate that document into these reasons for sentence and sentence you on the basis of the facts set out therein.
3You were in a full-time relationship with your victim for about two years. You had previously known her and from time to time been intimate with her over the years. Your relationship was turbulent. Your victim complained of violence, intimidation and sexual assault, in the period leading up to the time you offended as convicted by the jury.
4
You were acquitted by the jury of six charges alleged to have been committed prior to 2004, and by my direction on one of charge, allegedly committed in
January 2004. I make it clear that I am sentencing you for the offences for which you were convicted by the jury and nothing else.
5In early 2004, your victim obtained an intervention order against you in a Regional Magistrates' Court[2]. She subsequently withdrew that order, and you moved back in with her at her home in regional Victoria[3]. In January of 2004, your victim had been out for a night with friends. When she returned to her home, you were angry and threatened her. You said, 'If you ever cheat on me, I want you to know this, 'I'm going to tie you and the kids up and burn the house down, with you and the kids in there.' This is the basis of the first charge for which you were convicted by the jury of threat to kill, Charge 7.
[2] A pseudonym
[3] A pseudonym
6You told the police in your record of interview that you were a really angry man on the drugs. And that, 'Look, I could have said anything.' You said, 'Look when I'm off my face on amphetamines and emotionally hurt, your mouth has the potential to say anything.'
7Between March and April 2004, you got into the shower with your victim. You pushed her towards the wall and the water ran over her face, she struggled to breathe. You forced her to have either anal or vaginal sex. She told you to get out. You did eventually and she stayed in the shower until the hot water ran out. This is the basis of Charge 9, rape.
8Sometime between late April and early May 2004, you were using drugs and listening to music in the bedroom with the door shut. You came out and told your victim to have a shower and use her bowels, which was code indicating that you wanted to have sex. You had been drinking alcohol and smelt of bourbon. You had a box containing sex toys, vibrators, dildos, anal beads and other items.
9Your victim showered and commenced consensual sex with you. You thereafter blindfolded her with a tea towel and a dressing gown belt. You tied her arms to the foot of the bed, leaving her unable to move. This is the start of the conduct constituting Charge 10, false imprisonment.
10Your victim begged you to stop, you put a condom over your hand, put lubricant on that hand, you then inserted your hand into her anus. This forms the basis of Charge 11, indecent assault. While she was still tied and blindfold, you had a pornographic movie playing. You commenced to re-enact what was occurring on the DVD and using the sex toys. You inserted your sex toys into both her vagina and into her anus, you were making jokes about how much you could fit inside her.
11One of the items you used was a Fanta bottle. It caused your victim great pain. She told you that you were hurting her and to stop, but you persisted. Your victim suffered excruciating pain. Ultimately, she was taken to hospital and her IUD contraceptive device was found to have perforated the walls of her uterus. Upon her release she found sanctuary in a refuge and took out another intervention order against you. She informed her doctor in 2005 that you had sexually abused her and raped her with an object. But it was not until 2015 that your victim spoke to police and finally made a statement in 2016.
12When you were arrested and interviewed on 26 April 2017, you denied sexually assaulting your victim. You claimed that any sexual activity with her was consensual. The issue at your trial revolved around whether your victim consented or whether you believed she was consenting to any sexual activity that took place. The jury's verdict demonstrates that they were satisfied beyond reasonable doubt that the alleged events occurred, that your victim was no-consenting and that you were aware she was not consenting or might not be consenting.
13In my view your offending represents serious examples of the offence of rape. You engaged in violent, degrading and controlling behaviour. You violated the woman your professed to love. You caused her extreme fear, degradation and humiliation. You offended against her in her own home, a place where she should have felt safe.
14When she obtained the intervention order in January 2004, you knew that she had issues with your conduct. Even though she was prevailed upon to give you another chance and withdraw the intervention order, you were effectively on notice that she did not consent or agree to your violent and controlling behaviour. You were not however, deterred.
15Your victim filed a victim impact statement, Exhibit B. She read it to the court. She has been seriously and permanently damaged by your offending. What she thought was love, caused her hurt, fear and terror. She felt like a prisoner and a prostitute in her own home and she feels that her pain and suffering are irreparable. She became effectively homeless when she sought to escape from you. She avoids social interaction because she feels unsafe and fearful. She has difficulty finding joy, suffers memory problems and impaired sleep. She states, 'I have trouble moving on, the trauma will live forever.' I take the victim impact statement into account in sentencing you.
16You have admitted a prior criminal history. You have many dated prior convictions. In 1986, you were fined for drug offences. In 1987, you were fined for intentionally causing injury. In 1989, you were imprisoned for three years and six months with a non-parole period of 21 months for offences of armed robbery and attempted armed robbery. In 1992, you were sentenced to a suspended term of imprisonment for trafficking, possession, cannabis and possessing a prescribed weapon.
17
You breached the suspended sentence and was sentenced to serve the
four months' imprisonment in 1993, however, on appeal that order was set aside and the suspended sentence reimposed. In 1994, you were imprisoned for
one month for offences of driving while disqualified and possessing a pistol without a licence.
18You do have subsequent convictions that bear upon your prospects for rehabilitation. In 2005, you received a bond for breach of the intervention order. In 2006, you were fined for breach of that order. In 2014, you received a Community Corrections Order for the offence of threat to kill and using a carriage service to harass. In 2021, you were sentenced to a hundred and forty days imprisonment for contravening a family violence intervention order, committing an indictable offence whilst on bail, harassing a witness, making a threat to kill, and stalking. Those offences relate to your victim in the offending for which I am to sentence you.
19The details of this offending are set out in Exhibit C which includes a police summary.
20You threated to kill your victim in the offending I'm dealing with. You told your daughter you wanted to bail up your victim, that you would shoot your victim or get someone else to do it and, 'Gonna shoot that cunt, straight between the eyes.' This subsequent material does not bear upon your sentence for the offending, save that it demonstrates your prospects for rehabilitation are poor, and that you represent a risk to your victim in the future.
21Turning to your personal circumstances.
22You are now 54 years of age, being born on 20 September 2068. You grew up in Melbourne[4] and your father was an engineer, he died ten years ago. Your mother is a retired seamstress still living in Melbourne and you have one sister. You enjoy strong family support from both your mother and sister. Each provided letters of support, Exhibit 3, describing you as a hard-working family man and someone whose life changed for the better since ceasing illicit drug use.
[4] A pseudonym
23You were educated to Year 10 level. You then commenced but did not complete a motor vehicle apprenticeship.
24You had begun illicit substance use and found yourself in prison for armed robbery.
25You did resume employment with Holden upon your release from custody but relapsed again into drug use. After being unemployed for some four years you worked for 12 years in a wool factory in Williamstown and five years with a pharmaceutical company. You have been unemployed since your father died.
26In 2014, you sustained serious injury to your spine when a tree fell on you. You have been in receipt of social welfare payments recently and you lived in rental accommodation in regional Victoria[5] involving yourself in community radio and animal welfare.
[5] A pseudonym
27You have a number of health issues. In 2020, you suffered a heart attack and underwent surgery. This year you have undergo spinal surgery to your neck and require strong painkillers for the result in pain.
28You have had a long term on again, off again relationship with your victim for over 30 years. You had a sexual relationship with her for 15 years, even when she was married. You and your victim have a 17-year-old daughter. You claim to have a positive relationship with that daughter, but the behaviour surrounding your subsequent offending as disclosed in Exhibit C, throw grave doubts as to your assertions to psychologist, Carla Ferrari, in this regard. It appears to me that you are somewhat delusional and untruthful as to that involvement.
29Whilst in a relationship with your victim, you regularly abused cannabis and amphetamines. Subsequently, you have turned to significant alcohol abuse. Fortunately, you claim to feel much better now that you are abstinent from alcohol whilst you have been on remand.
30I accept that your medical issues and resultant depression will make custody more onerous for you, that it would for someone without your issues. Your counsel correctly expressly disavowed reliance on the principles set out in R v Verdins.
31There is little that can be said to mitigate your offending. You exhibit no remorse or contrition for your controlling, abusive and violent behaviour. You have a history of violence and demonstrated ability to be self-delusional, self-centred and dishonest. The best that can be said for you is that you had a reasonable work history, enjoy family support and have the burden of medical issues including depression that will continue to cause you problems in the future.
32Ultimately, your counsels submission, submitted that because of these factors, I should order a significant parole period on what he conceded would be a substantial term of imprisonment.
33I have had regard to the maximum penalties prescribed by parliament, for each of your offences. Rape in particular, is an extremely serious offence as demonstrated by the 25-year maximum penalty. I have had regard to current sentencing practices, excluding those involving standard sentences of more recent times, in arriving at appropriate sentences in your case.
34General deterrence, specific deterrence, just punishment and denunciation of your conduct are the principle sentencing considerations in your case. Your offending was inexcusable, violent, degrading and humiliating.
35Because I intend to impose terms of imprisonment in respect of all charges, you fall to be sentenced as a serious sexual offender in respect of Charge 13, rape. Accordingly, I must regard protection of the community from you as the principle sentencing consideration.
36To achieve that purpose, the court can impose a disproportionate sentence, I will not do so in your case. The prosecution conceded that I can properly protect the community with the sentences otherwise available to the court.
37I order that it be recorded in the records of the court, that you have been sentenced as a serious sexual offender in respect of Charge 13.
38
I do not propose an order requiring you to be registered under the
Sex Offenders Registration Act. I am not satisfied beyond reasonable doubt, that you pose a risk to the sexual safety of anybody in the community. Your age, and the length of sentence I am about to impose mitigate against such a finding and accordingly I will not or cannot make an order for registration.
39Finally, I have had regard to principles of totality and cumulation in arriving at an appropriate head sentence in your case. I am conscious the charges 10-13 all arise out of one incident and there must be substantial concurrency for the offences involved in that group of offences. Insofar as a non-parole period is concerned, I have had regard to the matters urged by your counsel.
40On all charges you are convicted.
41On Charge 7, threat to kill, you are sentenced to be imprisoned for two years.
42On Charge 9, rape, you are sentenced to be imprisoned for eight years.
43
On Charge 10, false imprisonment, you are sentenced to be imprisoned for
two years.
44
And on Charge 11, indecent assault, you are sentenced to be imprisoned for
two years.
45On Charge 12, rape, you are sentenced to be imprisoned for 12 years.
46And on Charge 13, rape, you are sentenced to be imprisoned for 10 years.
47I order that one year of the sentence on Charge 7, four years of the sentence imposed on Charge 9 and two years of the sentence imposed on Charge 13, be served cumulatively upon the sentence imposed on Charge 12, which I declare to be the base sentence.
48
That is an effective term of imprisonment of 19 years. I order that you serve
13 years of that sentence before being eligible for parole. I declare 88 days, is that correct?
49MR THYSSEN: I think so, Your Honour.
50MS FALLAR: I had 89 days, Your Honour.
51HIS HONOUR: Well, if you have got 89, I will go with that. I declare 89 days of the sentence I have just imposed has already been served by way of pre-sentence detention. Are there any other orders required?
52MS FALLAR: Nothing further, Your Honour.
53MR THYSSEN: No.
54HIS HONOUR: All right. Thank you. I'll terminate the link. Thank you counsel for your attendance; I will adjourn now sine die.
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