Director of Public Prosecutions v Hay

[2015] VCC 996

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

AT GEELONG
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

IAIN HAY

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	27 & 28 May 2015
DATE OF SENTENCE:	28 May 2015
CASE MAY BE CITED AS:	DPP v Hay
MEDIUM NEUTRAL CITATION:	[2015] VCC 996

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J.B.B. Lewis	Office of Public Prosecutions
For the Offender	Mr S. Ginsbourg	Stary Norton Halphen

HIS HONOUR:

1Iain Hay, on 26 May 2015, a jury found you guilty of one charge of sexual penetration of a child under the age of 16.

2The victim was TA.  She was 14 at the time.  The penetration was by you putting your tongue in her vagina.

3The next day, 27 May, you pleaded guilty to two further charges of an indecent act with a child under the age of 16.  The victims were TJ and TS.  All the victims were sisters.  The daughters of TD and the deceased, AT.

4Mr T was at the time a work colleague of yours in Geelong.  You were invited to the family home in Winchelsea.  From time to time, you would stay over a night or two, sleeping on the couch. 

5On a night between March 1999 and April 2002, TJ, then around the age of between seven and ten, got up to go to the toilet.  She had to go through the lounge.  You asked TJ to sit on the couch with you, she complied, and once on the couch, you touched or caressed her high on the leg near her groin.

6When TS was between the ages of ten to 14 or thereabouts, you went into her bedroom, touched her over her bedclothes and under the blankets around her crotch area and tried to move her legs apart.  She resisted and you left.

7As to the crime against TA, you were at the T house for Easter 2010.  You went into her bedroom, lifted her blankets and tried to get her legs apart.  She resisted, but you pressed on until she relented.  You took her underpants down and penetrated her vagina with your tongue.  You then left the bedroom.  As I said, she was 14 years old.

8Your crimes have left an unfortunate legacy.  Each of the victims prepared a Victim Impact Statement.  TA was affected at the time being unable to focus on her schooling and she had difficulties thereafter at school.  She had trouble sleeping and the incident intruded into her thinking.  She has had trouble trusting and forming close relationships.

9TS and TJ also wrote of the difficulties they had in trusting people, and sleeping and in forming relationships.

10The offence against TJ is an indecent act at the lowest end of the scale.  What is most concerning is her very young age at the time.

11Touching of TS reveals an escalation in your conduct and it is serious.

12The penetration of TA's vagina is self-evidently a serious crime.  It was a depraved violation of her personal autonomy. 

13The breach of trust in all the offending is significant.  You were a family friend, invited to the house to enjoy the hospitality of your friend, Mr T.  You were expected to be a decent friend, not someone who abused young children of the family.

14You were in your 40s when you committed these crimes.  You are now 56.  You have old driving offences and in recent times a drink driving offence with a very large blood alcohol reading.  You are on a community-corrections order at the moment.  The lack of relevant prior history is a factor in your favour. 

15You moved from school into the workforce, and commenced at the Ford Factory whilst still a teenager.  You remained there for 36 years, finishing work in 2011 or 12, or thereabouts.

16You contributed well at work as a shop steward and OH&S officer, and a leader in the repair shop.  Your work history is to your credit.

17You were in a long relationship for many years.  It ended in 2011.  Your partner wrote a testimonial and I found it very helpful. 

18Of most significance in your personal circumstances in your long-term excessive drinking and consequential poor health.

19The evidence in the trial and what was said on your plea indicates you have regularly drunk prodigious amounts of alcohol all your adult life.  You are an alcoholic.

20You have very serious chronic liver disease.  You have Hepatitis C and treatment for that has not proved successful.  Your liver cirrhosis is due to Hepatitis C and your lifelong alcohol intake.

21In more recent times you have developed insulin dependent Diabetes, likely due to pancreatic failure due to alcohol abuse.

22Your illnesses are very significant ones and, sadly, your prognosis is poor.  You struggle with daily activities and getting to court was a big undertaking.

23Despite you being placed on the community-corrections order that
I mentioned, you are still drinking.  As an alcoholic you will always struggle to abstain, but, Mr Hay, that is what your health now requires.

24You are under the care of your general practitioner, specialists at the liver clinic, gastroenterologist and endocrinologists.  I have had the benefit of the reports from these treating doctors.

25In addition, I had a progress report, as it were, from the counsellor engaged as part of your current community-corrections order.  What it reveals is your difficulty with anxiety and depression.  Your ex-partner also spoke of these matters as well.

26Poor physical health has long been a relevant factor in the sentencing synthesis.  So too now is poor mental health.  In my view, your circumstances with your ill-health, principally your physical ill-health, means that I will moderate your sentence because you will do prison harder, and because mercy to those that are seriously ill is always warranted.

27Taking into account your ill-health means that time in prison may well be a significant part of what remains.

28All this is said, notwithstanding the obligations on the State to care for you properly while you are in prison. 

29Your plea of guilty in the matters relating to TJ and TS are important pleas.  They, that is, TS and TJ, were relieved of giving evidence as to what happened to them.  The adverse effect on victims of the experience of giving evidence cannot be overstated. 

30Thus, your penalty for those offences will be less than it otherwise would have been.  Your plea of guilty reveals some remorse for those offences.  They are now, of course, between 16 to five years old, and I will take that into account in the mix.

31I must have regard to the principle of proportionality, especially with respect to the offence against TJ.  In practicable terms I should not move to a disproportionate sentence simply because you will be incarcerated for the more serious offences against the other victims, in particular, TA.

32Because of the particular terms in our legislation relating to the serious sexual offender provisions, a sentence of imprisonment for the offence against TJ, however short, can have implications; in particular, as to orders for cumulation.

33There must be some cumulation for the other offence involving TS.  In all the circumstances though it will be a moderate cumulation.

34The sentencing purposes that are important are denunciation of your dreadful and depraved sexual abuse of three young sisters.

35The often long term toll such abuse takes on its victims must be acknowledged by stern sentences mostly involving gaol.  I must also endeavour to deter those who are minded to enter the dark realm of sex abuse of children.  The message should be crystal clear.  Gaol awaits those who abuse children.

36I have not overlooked your rehabilitation.  You will need support, especially with your alcoholism when you are released.  Your counsel's final submission was for a combined community-corrections order and imprisonment.  He relied on the important guideline and judgment of our Court of Appeal in Bolton v The Queen.

37He pointed to the benefits of ongoing treatment, including sex offender programs, and supervision.  Although unpaid work was not an option in your circumstances, I consider that any aspect of a community-corrections order has a punitive effect for you and your state of health.

38In the end I think I can meet the sentencing purposes appropriately and justly with a sentence of imprisonment and a community-corrections order, together with the fine.

39Will you please stand, Mr Hay.

40On Indictment D13085228.1, for committing the crime of sexual penetration of a child under the age of 16, being TA, you are sentenced to 12 months' imprisonment, together with a two year community-corrections order, with treatment and supervision conditions which I will detail shortly.

41On Indictment D13085228.2, on Charge 1, indecent act with or in the presence of a child under the age of 16, being TJ, you are convicted and fined $700.

42On Charge 2, indecent act with or in the presence of a child, being TS, who is under the age of 16, you are sentenced to six months' imprisonment.

43Two months of that sentence is cumulative upon the sentence that I imposed on Indictment D13085228.1.  That gives a total sentence for both indictments of 14 months' imprisonment, with a two year community-corrections order and a $700 fine.

44You have served one day in prison already, Mr Hay, and I will declare that one day has been served as part of the sentence that I have imposed.

45I will ensure this declaration is entered into the records of the court so the prison authorities are left in no doubt that your sentence started yesterday, that is, one day as being reckoned as part of a sentence I have just imposed.

46Had you pleaded not guilty to the charges that you pleaded guilty to, on Charge 1 you would have received a three month community-corrections order; on Charge 2, a ten months sentence of imprisonment.

47By reason of the provisions of the Sex Offenders Registration Act, it is mandatory that you be placed upon that register and remain on that register for life.  There will be documentation that has to be signed in regard to that.

48Finally, the Crown has made an application that you provide a forensic sample; that is, a scraping from your mouth so your DNA can be extracted and placed on the date base.

49I have considered that application and I propose to grant it.  The reasons for that are the seriousness of the offending and it is in the interests of justice that you provide the sample.

50When the authorities come to get the sample from you, you must co-operate because the authorities are authorised to use reasonable force to get the sample if you do not.  The way through it, of course, is to co-operate.

51Is there anything further required?

52MR LEWIS:  No, Your Honour.

53MR GINSBOURG:  No, Your Honour.

54HIS HONOUR:  You can be seated, Mr Hay, while documents are produced and the details of your community-corrections order will be outlined to you.

55Mr Hay, the terms that apply to everyone who is on a community-corrections order are these. 

56You must not commit another offence for which you could be imprisoned during the time the order is in force.  It is for two years and commences upon the completion of your imprisonment.

57You must comply with any obligation or requirement under the regulations that attach to the Sentencing Act, that is they will need to take your photograph and you have got to comply with all that.

58You must report to, and receive visits from, the Office of Corrections.  You must report to the community-corrections centre in two clear working days of you being released from prison.

59The Community Corrections Centre is, as you know, the State Government Offices here in Lt Malop Street, Geelong.  You must let the Community Corrections Officer know within two clear working days, if you change your address, or your job, and you must not leave Victoria without first getting permission to do so and you must obey all lawful instructions from the Office of Corrections. So those apply to everyone; they apply to you. 

60The next part of your community-corrections order are the programs that relate specifically to you.  You must undergo assessment and treatment, including testing for alcohol abuse and dependency as directed by the Regional Manager.  So, that will just pick up again once you are released.

61You must undergo medical assessment and treatment, including general and specialist medical treatment as required by the Regional Manager.

62You must undergo any mental health assessment and treatment, including psychological or neuro-psychological or psychiatric treatment, as directed by the Regional Manager.

63You must participate in programs and course that address factors relating to the offending, as directed by the Regional Manager.

64The principal program that is involved here is a Sex Offenders Program, and you must engage in that.  If you consent to this, sign it, and you will be given a copy ultimately.

65Also there is, as I have said, documentation relating to the Sex Offenders Register.  What is required is that I sign a document that says that I have given you documents.  You have to sign a document to say you have been given the documents.

66The important thing is what is said in the documents that you take with you, which is all your responsibilities, once you are released and required to go on to the Register.

67Those responsibilities are significant, and important for you is, if you do not comply with them, and continue to comply with them, the consequences for breaching the conditions of a sex offenders registration are very significant.  That will be explained to you in detail when you are released.  So that document is for you to sign.

68By reason of there being two sex offender registration offences, you have to sign it twice.  Can your instructor assist - or someone assist Mr Hay with that.

69The transcript will note that Mr Hay has signed two copies of the acknowledgment form, being acknowledged that he has been provided with notification of reporting obligations and it will be kept on a file at the court, but, more importantly, sent to the Chief Commissioner of Police.

70Mr Hay, you have signed the community-corrections order.  I will sign that as well.  I need to stress to you that you must do all that is required of you under this community-corrections order and if you do not, you will come back before me and it will be unlikely that I give you another community-corrections order.  It will be just more gaol.  Do  you understand?

71OFFENDER:  Yes.

72HIS HONOUR:  So do the order once you get out.  There will be a stay obviously of a month on the fine.  I think we will just leave it at that and see what happens.

73MR GINSBOURG:  Yes, Your Honour.

74HIS HONOUR:  Is there anything further required?

75MR GINSBOURG:  No, Your Honour.

76MR LEWIS:  No, Your Honour.

77HIS HONOUR:  I thank counsel for their very significant assistance in the trial and resolving the matter.

78Mr Hay, you will now be taken back to the cells and off back to the prison and hopefully classified quickly.  I hope you get the medical treatment that was delayed to you last night, as I am told, notwithstanding the fact that I wrote it on the form, and the fact that the prison officers here, with their usual dedication, rang the prison and told them that you were coming, that you had medical problems and that you required attention as soon as you got there.

79That all just did not eventuate because of the bureaucracy of the prison that you were taken to.  That is very regrettable, but everyone at this end
I understand did what they could.

80I was told all that this morning when you were delayed because you had to be seen by a doctor this morning, not last night.

81Mr Hay, you have to go with the prison officers now.

82(Offender removed.)

83As I say, Mr Ginsbourg, I can write it out, but it makes not the slightest bit of difference.

84MR GINSBOURG:  Yes, my instructor and I anticipated Your Honour might make that observation.

85HIS HONOUR:  But even if I did not do it, the closest thing to bringing it off was the prison officer ringing them up.

86MR GINSBOURG:  Yes.

87HIS HONOUR:  And that is better.  One of them telling them what they should be doing.

88MR GINSBOURG:  I am indebted that Your Honour was nonetheless moved to write something on the order.

89HIS HONOUR:  I did, on the order.  Thank you.

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