Director of Public Prosecutions v Hayden (a pseudonym)
[2024] VCC 1858
•15 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RUBIN HAYDEN (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 August 2024 | |
DATE OF SENTENCE: | 15 November 2024 | |
CASE MAY BE CITED AS: | DPP v Hayden (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1858 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentencing
Catchwords: groom for sexual conduct with child under 16 – sexual penetration of step-child – sexual assault of child aged under 16 under care, supervision or authority to engage in sexual activity – possess child abuse material – threat to destroy property – plea of guilty – cognitive functioning and mental health – Bugmy - Verdins
Legislation Cited: ss 5(1), 6AAA, 6F, Sentencing Act 1991 (Vic), s 34 Sex Offenders Registration Act 2004 (Vic).
Cases Cited:McPherson v The Queen [2021] VSCA 53 [31]; R v Verdins [2007] VSCA 102; Bugmy v The Queen [2013] HCA 37; DPP v Herrmann [2021] VSCA 160; DPP v Drake [2019] VSCA 293; Azzopardi & Ors & the Queen (2011) 35 VR 43.
Sentence: Total effective sentence of 12 years imprisonment with a non-parole period of 7 years and 8 months. Serious sexual offender. Forfeiture order made in the terms sought, unopposed. Reporting period of life on the Sex Offenders Registration Act 2004 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. McKenry | Office of Public Prosecutions |
| For the Accused | Ms A. Hurst | Victoria Legal Aid |
HER HONOUR:
1Rubin Hayden[1], you have pleaded guilty to:
One charge of groom for sexual conduct with a child under 16;
Nine charges of sexual penetration of a step-child;
One charge sexual assault of a child aged 16 under care, supervision or authority;
One charge of produce child abuse material;
One charge of encourage child aged 16 under care, supervision or authority to engage in sexual activity;
One charge of possess child abuse material; and
One charge of threat to destroy property.
[1] A pseudonym.
2You have also agreed to this Court hearing, and have pleaded guilty, to summary charges relating to three charges of contravention of a family violence intervention order.
3The full circumstances of your offending are outlined in the prosecution opening, marked as Exhibit A. This constitutes the factual basis upon which I sentence you.
Circumstances of the offending
Background
4You began living with Terrie Sosa[2] in 2015 and you married in 2016. Ms Sosa had a daughter, the victim of your offending, Augusta Benton[3] to a previous partner. Ms Benton was born in February 2007 and from the age of 8 you were her stepfather. Her older brother also lived with you, along with your biological daughter on alternate weekends.
[2] A pseudonym.
[3] A pseudonym.
5Ms Benton described that she had “…a really good relationship” with you, which turned sexual from late 2020, when she was aged 13.
First set of offending – 2020-2021
6From November 2020 you had been repeatedly asking Ms Benton to have sex with you. When she declined, you would ask her why she did not want to, and further tell her that once you had had sex, it would not hurt as much on subsequent occasions (Charge 1 – Grooming). This charge comprises the ongoing communication during the relevant period to facilitate Ms Benton’ involvement in sexual activity with you.
7On an occasion between November 2020 and January 2021, Ms Benton (aged 13) was alone with you at a warehouse that was leased by your employer [hereafter “the warehouse”]. You removed her pants and underwear, turned her around, stood behind her and penetrated her vagina with your penis. You did not wear a condom. After she returned home, Ms Benton went to the toilet and observed that she was bleeding from her vagina (Charge 2 – Sexual penetration of step-child; part of rolled-up charge).
8On an occasion between January and April 2021, you took her (then aged 13-14) to the warehouse again. She felt comfortable going with you because, “He's always said that he would be there for us kids and stuff like that and he'll make us safe...’ However, you again asked her to have sex, and after “pushing and pushing me…he ended up doing it again”, by penetrating her vagina with your penis, without a condom (Charge 2 – Sexual penetration of step-child; part of rolled-up charge).
9In the same time period, you and Ms Benton (then aged 13-14) were in a shed at your home in Sebastopol. You directed her to kneel and open her mouth and penetrated her mouth with your penis, telling her to move her head back and forth (Charge 3 – Sexual penetration of step-child; part of rolled-up charge).
10In the same time period, on two other occasions at the warehouse, you asked her (then aged 13-14) to perform oral sex on you. Though she felt uncomfortable with this, she considered that “...there is no point fighting back”, and complied (Charge 3 – Sexual penetration of step-child; both instances part of rolled-up charge).
11On another occasion at the warehouse in the same time period, you told her to lie on a table, pulled down her pants and underwear and licked her vagina, which is led as context.
Initial Complaint and Police Investigation
12On 22 May 2021, Ms Sosa discovered messages between you and Ms Benton. Ms Benton initially denied that she had had sex with you. However, on 23 May, she disclosed various sexual acts between them to Lucy Hayden,[4] your sister.
[4] A pseudonym.
13Police were notified on 23 May. You were interviewed on that day, based on an initial disclosure interview with Ms Benton. Your answers are summarised at paragraph [11] of the prosecution opening. You told the police, inter alia, the messages had been misinterpreted; your relationship was one of father-daughter, and you had ‘...never done anything sexual towards her,’ A VARE was taken from Ms Benton on 27 May disclosing the offending at the warehouse and she made a statement on 14 June.
14On 25 January 2022, a Family Violence Final Intervention Order (which lapsed in January 2023) was granted against you, permitting you to reside with Ms Benton, though prohibiting family violence against her. Ms Sosa invited you to return and reside with her in Ballarat North and in February 2022, you did so. A Department of Families, Fairness and Housing (DFFH) Safety Plan was implemented which stipulated you were not allowed to have one-on-one contact with Ms Benton. The offending nonetheless resumed soon after you returned.
15On 18 October 2022, Ms Benton and Ms Sosa made statements requesting no further police action. Ms Benton indicated she was not prepared to give evidence in court as, “…I don’t want dad to leave.” The investigation subsequently ceased, and you were not charged.
Second Set of Offending, 2022-2023
16The offending against Ms Benton resumed in February 2022, soon after you returned to the home. You asked Ms Benton (then aged 14) to clean one of the bathrooms at your home in Ballarat North. You followed her in and asked her to get on her knees and perform oral sex on you, which she did (Charge 4 – Sexual penetration of step-child).
17The remaining particularised offending identified by Ms Benton occurred between May and September 2023 at your Ballarat North Home, when she was aged 16.
18In May 2023, you and Ms Benton were in her bedroom. You licked her vagina, led as context, and then penetrated her anus with your penis, ejaculating in her anus (Charge 5 – Sexual penetration of step-child).
19In July 2023, you collected Ms Benton from school and told her to go to the bedroom and lie on the bed. You then pulled her pants down and licked her vagina for a few minutes (Charge 6 – Sexual assault of a child aged 16 under care, supervision & authority).
20On 4 July 2023, there was an exchange of phone messages between you and Ms Benton regarding two “toys” which had arrived for her.
21On 24 July 2023, messages between you included Ms Benton saying, ‘I’ll be on my knees soon for you daddy’. You collected her from school before the school day was over (an “unexplained absence” from 2:15PM is recorded). You directed her via messages into the bathroom, warning that her brother Nicholas[5] was in the vicinity. You went into the bathroom, told her to take off her pants, and introduced a vibrator into her vagina. After a while, you told her to put her pants back on and act like nothing happened (Charge 7 – Sexual penetration of step-child; part of a rolled-up charge).
[5] A pseudonym.
22On 31 July 2023, Ms Benton’s school had a curriculum day. You returned home from work around 12:00PM. You entered the bathroom together and you penetrated her vagina again with the vibrator (Charge 7 – Sexual penetration of step-child; part of a rolled-up charge). You recorded a video of this penetration on your phone, with a duration of 1 minute and 19 seconds (Charge 8 – Produce child abuse material).
23On 21 August 2023, and the days following, there was an exchange of messages, as outlined in the prosecution opening at paragraphs [22] and [23], in which you encouraged her to pretend to be sick on Wednesday 30 August 2023 so that you could have sex.
24On 30 August 2023, Ms Benton was absent from school due to purported illness. When you returned home from work, you directed her into Ms Sosa’s bedroom. You directed her to get on her hands and knees, and penetrated her vagina with your penis from behind. You then directed her to perform oral sex on you, and ejaculated in her mouth (Charge 9 – Sexual penetration of step-child; a rolled-up charge comprising these two acts).
25A few days later, you collected Ms Benton from school. You directed her to enter the bathroom, then told her to pull her pants down and penetrated her vagina with your penis (Charge 10 – Sexual penetration of step-child). You later told her to kneel; and masturbated and ejaculated on her breasts, which is led as context.
26On 4 and 5 September 2023, as outlined at paragraph [26] of the prosecution opening, you sent Ms Benton messages encouraging her to engage in sexual acts with other people. Further, on 5 September 2023 you sent her a series of sexually explicit messages detailing the acts that you would perform on her. These messages combined, constitute the rolled-up Charge 11 on the indictment, encourage child aged 16-17 under care, supervision or authority to engage in sexual activity.
27That night you collected Ms Benton from her workplace and drove her to a storage unit. You directed her to pull down her pants and introduced your penis into her vagina. After a few minutes you told her to kneel and perform oral sex on you and ejaculated in her mouth (Charge 12 – Sexual penetration of stepchild; a rolled-up charge comprising these two acts). The following day you sent her messages, as outlined at paragraph [29], about what you had done, which is led as context.
28On 7 September 2023, you directed her to penetrate herself and provide “proof”, as detailed in paragraphs [30] and [31] of the prosecution opening, constituting part of Charge 11 – Encourage child aged 16-17 under care, supervision or authority to engage in sexual activity; part of a rolled-up charge.
29On 12 September 2023, you collected Ms Benton from her workplace at night and drove to a dark street, where you directed her to perform oral sex on you while in the car. She did so, and you ejaculated in her mouth (Charge 13 – Sexual penetration of stepchild).
30That was the final particularised act of sexual offending. In addition to the particularised acts, there were unparticularised acts of penetration and touching between you and Ms Benton during the offending period referred to as context
Discovery and Second Investigation
31On 15 September 2023 a 16-year-old classmate of Ms Benton observed that she had received explicit messages. Ms Benton confirmed that they were from you, describing you as “…the only one that cares about me”. The classmate notified a teacher.
32School staff spoke to Ms Benton and viewed some of the messages. Police were notified and attended. Ms Benton was observed to be extremely distressed; she expressed the concern that if you went to gaol, you would kill yourself, and that she would be to blame. She said you were the only person who loved and understood her.
33You were initially remanded in custody and bailed on 18 September 2023. An intervention order was imposed, with Ms Sosa and Ms Benton as the protected persons.
34On 20 September 2023, your sister, Stephanie Hayden, recorded an in-person conversation with you. You admitted only touching Ms Benton’s breasts, and denied that you had had sex. You threatened to burn down the house which you and Ms Sosa had been renting if your property was not returned (Charge 15 – Threat to destroy property; Summary Charge 5 – contravene interim family violence intervention order).
35Ms Benton participated in VAREs on 20, 21 and 22 September 2023, in which she disclosed ongoing sexual offending.
36On 21 September 2023 you were re-arrested, again remanded in custody and interviewed. A summary of your answers are extracted at paragraph [39] of the prosecution opening. You were confronted with the messages you had exchanged with Ms Benton and made admissions, stating ‘I became the same as the monster that molested me when I was a kid.’
Analysis of Electronic Material
37Upon your arrest you were in possession of 356 images and 23 videos of Ms Benton which were classified as child abuse material, category 2 on the Automation Child Exploitation Categorisation Scheme (child abuse material featuring a child of or above the age of 13). There were also over 7,000 text messages between you, many of which were graphically sexually explicit (Charge 14 – Possess child abuse material). A broad description of the images and videos and a sample of the messages are contained in the prosecution opening.
38On 14 September 2023, the day before arrest, in addition to further sexually explicit messages, there was this exchange, part of which included the following:
…
Mr Hayden: Well just think about what I could lose if I am caught with you…You lose nothing
Ms Benton: You loose [sic] everything, your freedom your life everything you’ve built
Mr Hayden: An never be able to see you again everything I have put together for you gone…Do you realise that 1 dirty pic from me is 14 years jail…Exactly so thank [sic] about how you reply
Ms Benton: I didn’t know that you go to jail just over 1 pic and I will think about how I respond to your text from now on and forever
Mr Hayden: Princess it’s classed as grooming of a minor. 2 [sic] supply pornography to a minor.do you want this to continue. If yes you got to be smart about it yeah
Ms Benton: Yes daddy and I do want to continue
Mr Hayden: For 1 pic of you is 10 yrs
Ms Benton: I didn’t know that I’m sorry daddy
…
Post-remand offending
39On 27 February 2024, Ms Sosa received two envelopes at her home address, respectively addressed to her and Ms Benton. They contained letters from you, sent from Hopkins Correctional Centre (Summary Charges 47 & 48 – Contravene Interim Family Violence Intervention Order). She notified police and did not tell Ms Benton about them. The content of the letters are reproduced at [46] and [47] of the prosecution opening.
40You were initially remanded for this offending on 15 September 2023 and bailed on 18 September 2023. You were then re-remanded on 21 September 2024. You therefore have a total of 424 days available in pre-sentence detention.
Victim Impact
41I have received victim impact statements from both Augusta Benton and your ex-wife Terrie Sosa (Exhibits B and C). Ms Benton speaks of the profound emotional impact of your offending and how it also caused her to feel detached and disconnected from her mother. Your control and abuse of her has impacted all facets of her life, including school, work and her friendships. She states, ‘My emotions have been impacted significantly by what has happened and I haven’t wanted to do much or whenever I want to feel happy about something it turns into sadness, and I can’t seem to be as happy as I was when I was younger.’
42Ms Sosa refers to her emotions as being ‘all over the place’ and speaks of your betrayal and deceptions. She refers to how your offending has impacted the family and her relationship with her children, particularly Ms Benton. She concludes, ‘I struggle to not cry every day, the sense of loss for [Augusta] and myself, this was the person I was supposed to spend the rest of my life with.’
43I take into account the impact of your offending.
Gravity of offending
44Your offending is grave and serious. In particular, sexual penetration of a stepchild is a very serious criminal offence carrying a maximum penalty of 25 years’ imprisonment. This unequivocally indicates the seriousness with which the legislature, on behalf of the Victorian community, views this offence and ‘reflects the community’s abhorrence of sexual crimes against children.’ It is a category 1 offence and also carries a standard sentence of 10 years’ imprisonment.
45In sentencing you for these offences, I must have regard to the standard sentence which is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. The standard sentence is a factor I must have regard to, but it is not determinative and does not interrupt the operation of my instinctive synthesis. It is to be treated as a ‘legislative guidepost’, as is the maximum penalty.[6]
[6] McPherson v The Queen [2021] VSCA 53 [31].
46Because I will be sentencing you to terms of imprisonment on Charges 1 and 2, you fall to be sentenced as a serious sexual offender on Charges 3-14 inclusive. By reason of this status, in sentencing you on these charges I must regard the protection of the community from you as the principal purpose for which that sentence is imposed. The prosecution did not submit I should impose a disproportionate sentence on these charges, and I do not intend to do so.
47Turning to your offending, it represents a gross breach of trust and abuse of parental authority on your part towards your stepchild, Ms Benton. The total period of sexual offending spanned between 1 November 2020 and 12 September 2023 (noting the gaps between April 2021 and February 2022 and February 2022 and May 2023).
48You offended against your stepchild who was aged between 13 and 16 years at the time, often in her own home. The offending from Charge 5 onwards occurs when Ms Benton was 16 years of age. You were aged approximately between 33 and 35 years of age at the time of the offending.
49The higher Courts have emphasised the prominence of denunciation and general and specific deterrence in offending of this kind. As was stated in R v Sposito (Marks J) ‘a society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their case, is degenerate.’[7] Such offending is extremely serious, particularly where it involves breaches of trust and responsibility[8] .
[7] R v Sposito (Unreported, Supreme Court of Victoria Court of Criminal Appeal, 8 June 1993) (Marks J).
[8] Ryan v The Queen [2001] HCA 21 (Kirby J).
50In assessing the objective gravity of your offending I take into account its duration, its frequency, the range of penetrative acts encompassed (including penile and vaginal penetration without a condom), the breach of trust, Ms Benton’s vulnerability and your persistent and manipulative behaviours towards her, as outlined in the prosecution opening. Also, Charges 2, 3, 7, 9, 11 and 12 are rolled up counts and I take into account the full circumstances of your offending and the multiple acts constituting each charge. Aside from Charges 9 and 12 the separate acts occurred on temporally related though different occasions.
51In respect of part of your offending on Charge 7, you recorded the sexual act which constitutes Charge 8. I regard this as an aggravating feature of Charge 7 and, while Charge 8 marks separate criminality, I am mindful of the need to avoid double punishment. Again, although marking separate criminality, I also consider there to be some broad overlap between Charge 1, which comprises ongoing communication between the period the subject of Charges [2] through to [4]. Also, Charge [14], charged as a single date, encompasses your possession of both images and videos of Ms Benton along with the high volume of sexually explicit messages that had been sent between you during the period of the offending. I do however note that these messages continued after the last allegation of sexual offending, the subject of charge [13].
52In broad terms, your offending was predatory and persistent, persisting even after initial police involvement and an intervention order was obtained. After charge 3 on the indictment, there was an intervening period and a period for you to reflect on your conduct and to desist. Instead of doing this, you chose to resume the sexual abuse of your stepchild. I consider that these circumstances call for strong denunciation.[9]
[9] DPP v Polat(a pseudonym) [2020] VSCA 174.
53Your moral culpability is high, though I accept that some sensible, modest reduction is warranted on the material before the Court, which I will return to shortly.
54While I have also taken into account the additional context to your offending, you will not be punished for any uncharged acts.
Plea of guilty
55You entered a plea of guilty at an early opportunity.[10] Your plea of guilty entitles you to a significant sentencing discount. It indicates a willingness to facilitate the course of justice and to accept responsibility for your offending. It has also saved the cost and resources of a trial and importantly has spared Ms Benton and other witnesses the further trauma of the court process.
[10] See Prosecution chronology.
56I have considered whether your plea of guilty is also indictive of remorse.
57When Clinical Neuropsychologist Dr Linda Borg asked you what you would say to the Court if given the opportunity, you said: ‘I’m sorry … for everything I’ve done’ (at [26]). She was of the view however that your regard for the impact of your behaviour impressed as ‘superficial and [as] a secondary consideration’ (at [28]). She assesses that your maladaptive personality proclivities and poor emotional intelligence incline you to egocentricity and blame deflection and that taking all the relevant factors into account, your capacity for, and expression of, remorse ‘is superficial’ (at [57]).
58You told clinical psychologist Ms Alison Mynard that you were angry at [yourself], disgusted in [yourself] and [you have] now become the monster who tormented [you] all of [your] life’ (at [95]). She also considered that your insight about your offending ‘was very low, and [your] judgement was very poor in relation to [your] offending, impacted by multiple factors both historical and current challenges’ (at [54]).
59I accept that you have expressed some remorse for your offending but that it is compromised by reason of your maladaptive personality structure and poor emotional intelligence. You do possess the necessary cognitive and communicative skills to intellectually understand and express remorse and I consider that you need to engage in further treatment to assist develop your insight.
Personal circumstances
60Your personal circumstances were detailed by your Counsel and are canvassed in the reports of Ms Mynard and Dr Borg. Also, your sister, Stephanie Hayden, provided a letter and gave evidence at the first plea hearing, offering further insights into the hardships you have experienced as a child and a young person.
61In summary, your parents separated when you were approximately 18 months old. You have a sister to this union as well as two older half-sisters and a younger half-brother on your mother’s side.
62Your father worked as a shearer. You describe him as a ‘violent man’ who drank excessively. On one occasion you report that your father accused you of stealing $2.00 and crushed your fingers with pliers. Your mother was also subjected to extreme violence at his hands and ended up leaving the family home in 1988. She took the oldest two girls with her and you and your younger sister were placed into foster care and DHHS became involved. You have only partial memories of this period but at some point you were returned to the care of your mother who was living in Wodonga at that stage.
63During the time in Wodonga you report being the victim of both physical and sexual abuse at the hands of your mother’s partner and a neighbour. They tried also to abuse your sister and you did everything you could to protect her. Your sister gave evidence of the physical, emotional and sexual abuse suffered. She also gave evidence of your attempts, as a child, to protect her. She stated there were times when your mother’s partner had been on a rampage yelling at your mother or just drunk and that you would hide her, by covering her with blankets or storing her under the bed, so she could not be found.
64During this period your two older sisters were living with their father and step-mother in Penshurst and you and your sister ended up in their care, living in a farmhouse. The living conditions were harsh. There was no running water, and the kids would carry water up to the house from a tank out the back every night. There was no electricity. The house was heated by one slow combustion stove. You recall your stepmother’s kindness but state that she was also a victim of violence and abuse at the hands of your father.
65During the holidays you were required to go to Wodonga to see your mother, and the abuse was repeated over these periods. On one occasion you recall your stepfather choking you with a necktie until you could not breathe. When you reported this to your mother you got a belting for it. You were too frightened of your father to confide in him.
66Your mother eventually left her partner in Wodonga and moved to Hoppers Crossing. She formed a relationship with a truck driver who was also physically violent. You reflect that your mother herself grew up in the foster care system and gravitated towards ‘useless men.’
67You recall living in three different foster homes for periods throughout your childhood, where you also suffered abuse. You also lived in NSW with your father for a period in a derelict house and did not go to school at all during this time. Reflective of your circumstances at the time, when you were nine years of age, you were so distressed that you tried hanging yourself in a closet. Your father found out and gave you a belting.
68When you were around 10 years of age your father moved to Churchill. You went to Churchill Primary School but hated it because you could not read. You estimate that you had been to around 10 to12 schools by the time you left school early in high school, aged 14. Your sister estimated that it may have been some 15 to 20 schools.
69You were very fond of an aunt who offered you a home in Ballarat when you were 12 to13 years of age.
70You have a daughter, now aged 12, to a previous union. Since your arrest you have had no contact with her and there is an active intervention order in place. As already noted you met your now ex-wife Ms Sosa in 2016, and she had a son from a previous relationship, along with a daughter, the victim of your offending.
71In more recent times, your aunt and your stepmother died which has impacted you as they were some of the only ‘safe’ and caring adults that you had experienced in your life. Your sister gave evidence that your aunt’s death was extremely hard for you – she had been the mother figure for everyone and you had been very close to her. Your mother passed away earlier in 2010.
72You have always worked extremely hard and you take pride in your ability to have provided material support to your family in recent times. You have had a variety of jobs. In the past, you worked in a bakery for two years and became a qualified Pastry Chef. You have been baking whilst in custody. You are also a qualified welder and you were welding farm machinery and powder coating hooks. You were running your own business as a carpet layer during the offending period. While you struggle to read, you are good at fixing things and love working on cars.
73As for drugs and alcohol, you started drinking from around the age of 11 and were a heavy drinker by the time you reached 13. Your father introduced you to alcohol. You describe yourself as a ‘high functioning alcoholic’ and that during the offending period you were drinking excessively.
74You have a relevant prior criminal history though I note that it is limited. You have no history for previous sexual offending and have not previously been sentenced to a term of imprisonment.
75In sentencing you I take into account your personal history.
Cognitive functioning and mental health
76Turning to your cognitive functioning and mental health, Ms Mynard, assessed you over the course of three interviews.
77In summary she considers that you present ‘with a history of complex trauma disorder symptoms.’ She refers to the traumas you have experienced, including sexual abuse, various foster placements and extreme poverty (see at [57]). She also notes, as was confirmed by your sister, that in 2014 your brother-in-law hung himself and that you found him and tried to revive him.
78She states at [59] ‘Given his very early attachment traumas, Mr [Hayden’s] ability to have secure attachments is reduced and his capacity for appropriate emotional regulation is also reduced…’ Ms Mynard considers that your development, learning and ability to form secure and trusting bonds was interrupted due to the trauma you have been subjected to. Your emotional regulation skills have also been severely impacted (at [107]).
79Ms Mynard assessed you as falling within borderline ranges of cognitive functioning, which she summarised as impacting upon your ‘daily life significantly in [your] comprehension, memory, relationships, impulsivity, decision making and communication skills’ (at [77]-[90]). I indicate that to the extent that Ms Mynard assesses your low cognitive abilities as impacting the offending (see [110]) I rely on the further and more recent opinion of Dr Borg in this regard.
80Ms Mynard also diagnosed you as suffering Complex Post Traumatic Stress Disorder, Borderline Personality Disorder (provisional diagnosis), Borderline Cognitive Functioning and Alcohol Abuse Disorder (currently in remission in a controlled environment) (at [91]). At [109] she opines, ‘Mr [Hayden’s] complex PTSD combine with BPD traits had led to dysregulation of emotions, reduced capacity to manage his urges, and stunted emotional intelligence, including having empathy, understanding himself and his emotions, expressing himself, and understanding others, including the victim.’
81Dr Borg provided a report of 12 August 2024. She canvasses your history, including your medical history which includes treatment at the Royal Children’s Hospital between August and September 1988 after being kicked in the head by a horse (see [14]-[17]). Her findings can be summarised as follows:
(a) On being administered subtests of the Wechsler Abbreviated Scale of Intelligence you scored a Full Scale IQ of 89. There were statistically significant differences between the indices that comprise this score, with perceptual capabilities developed relative to language. Consistent with this finding, reading ability was at an IQ equivalent of 84 (14th percentile) or a Grade 8.1 equivalent (at [39]).
(b) You displayed average perceptual capabilities and Low Average verbal capabilities. Basic attention was within Low Average limits, although moderate reductions were evident with sustained and divided attention, as well as processing speed and working memory. She states:
When combined, these difficulties do impact his ability to encode, learn and remember information (which is more noticeable in the verbal domain) although considerable improvement in recall is evident with both repetition and prompting, which does not support a primary memory deficit. In terms of executive functions, Mr [Hayden] demonstrates intact mental flexibility, as well as functional reasoning skills bilaterally. Problem solving and planning skills are sound, and there is an absence of covert cognitive impulsivity on formal assessment.’ (at [48]).
(c) In comparison to the intellectual assessment undertaken by Ms Mynard in April-May 2024 you demonstrated consistent performance in some domains, namely processing speed, digit span, and word knowledge. However, improvement was displayed in both verbal and non-verbal reasoning as well as problem solving (at [49]).
(d) She concludes that your background history confirms the presence of acute trauma to the head as a child, which resulted in a depressed fracture involving the right frontoparietal region and more recent brain imaging has confirmed a focus of encephalomalacia in the lateral aspect of the right frontal lobe. On balance, you appear to have made a strong neurological recovery post-incident. There is little evidence to implicate a Specific Learning Disorder nor an intellectual disability. The symptoms you present with, taken together with the available psychiatric history, implicate a diagnosis of borderline personality disorder, which is considered the primary contributor to your clinical presentation. ‘This maladaptive personality structure is compounded by comorbid post-traumatic stress symptoms’ (at [52]).
(e) She does not consider that your offending can be linked to any form of cognitive dysfunction and considers that your borderline personality structure may in part have contributed to your conduct, ‘given an elevated tendency for behavioural impulsivity, intense anger and relationship instability’ (at [53]).
(f) She considers that a term of imprisonment has the potential to become increasingly onerous for you due to your mental health. At [54] she states –
Specifically, the presence of borderline personality traits and post trauma symptoms suggests he may be more prone to remain hypervigilant and react impulsively/aggressively in response to comments or reactions from others … in addition, symptoms of depression and stress continue to dominate Mr [Hayden’s] presentation and are likely to intensify his maladaptive emotional coping mechanisms. Hence, I consider Mr [Hayden] is at heightened risk of continued emotional distress that may negatively impact how he interacts with others – which in turn, has the potential to cause harm to self or others. Further, his history and presentation does implicate an elevated, and ongoing, risk of suicidal ideation, threats and self-harm’.
82In this respect, I also note that Ms Mynard opines that your time in custody is likely to lead towards a very low mood and may deteriorate significantly. She states, ‘Due to his mental health issues that are untreated, Mr [Hayden] will likely deteriorate whilst in custody, unless he is able to access antidepressant and mood stabilising medication, and regular mental health input’ (at [113]).
83Based on the opinions of Ms Mynard and Dr Borg I accept that you suffer from Borderline Personality Disorder and PTSD. While you refer to excessive drinking during the period of your offending the role of acute alcohol intoxication is unclear.
84Your Counsel submits that the Verdins considerations are enlivened in your case and ought to reduce your moral culpability and the weight to be given to deterrence[11]. On the expert opinions before me, I accept that the presence of these conditions may have played some role in impairing your ability to exercise appropriate judgement and make rational choices. Ms Mynard considers that your complex PTSD with your BPD traits has led to dysregulated emotions, reduced capacity to manage urges and stunted emotional intelligence (at [109], see also [107] and [108]). As already noted, Dr Borg states that your borderline personality structure may in part have contributed to your conduct, given an elevated tendency for behavioural impulsivity, intense anger and relationship instability. However, while accepting that these conditions likely played some part in your decision making, I am not satisfied on the evidence as to their nature, extent and effect, that they substantially account for your offending. You acted for the purpose of your own sexual gratification, with an appreciation of the wrongfulness of your conduct and your offending was protracted and persistent in nature, marked as already noted by an intervening period. While I accept your Counsel’s submission that Verdins is enlivened, I consider it only warrants a modest reduction in the circumstances.
[11] R v Verdins [2007] VSCA 102.
85In respect of your moral culpability, your Counsel also relies upon the principles in Bugmy v The Queen[12]. She submits that the impact of your upbringing has had a devastating impact on you and could in part, help explain your appalling offending conduct.
[12] Bugmy v The Queen [2013] HCA 37.
86On the material before me, I consider that your history of deprivation, abuse and other social disadvantage which occurred during your formative years has had profound and lasting consequences, and may, in part, to some degree, explain your conduct. On the evidence it seems that your personality disorder and PTSD have arisen out of your deprived background and history of trauma and in those circumstances, I am mindful of the degree of overlap between the mitigatory effect of the Bugmy and Verdins principles in your case. As a broader proposition, I also accept that your moral culpability for the offending cannot be equated with that of a person who has had the advantage of a stable and regular home environment during their formative years’[13] .
[13] DPP v Herrmann [2021] VSCA 160; DPP v Drake [2019] VSCA 293.
87I accept the prosecution’s general submission that while Bugmy and Verdins factors, as advanced, are relevant in your case, they also heighten the need for community protection.
Prospects of rehabilitation
88Your Counsel submits that with counselling and support your prospects for rehabilitation will improve and are reasonable. The prosecution submit that there is a need for caution and while you are expressing a desire to engage in treatment your capacity to do this is questionable and remains untested.
89In assessing your prospects I have taken into account the opinions and findings of both Dr Borg and Ms Mynard.
90Dr Borg administered the HCR-20 noting that while it has no recommended cut-off scores, a score of 30 out of40 and above has been widely used in clinical research to indicate risk of violence. Your overall score was 32 out of40 and was dominated by risk factors within all three domains – namely, personality and psychiatric vulnerabilities, combined with substance abuse, impairments to insight and negative attitudes, all raise concern regarding his responsiveness to treatment’ (at [29]). She assesses your risk of reoffending as ‘moderate but may tend to moderate-high levels when acutely intoxicated or during periods of acute psychiatric distress.’
91On Ms Mynard’s assessment, according to the Risk of Sexual Violence Protocol (‘RSVP’), you represent a moderate risk of re-offending. While she does not assess you as having any history or attitudes relevant to sexual deviance, there are several factors that indicate concern and increased risk in the future, including mental health issues and social adjustment issues (at [105]).
92Dr Borg recommends psychiatric opinion to determine if pharmacotherapy is indicated and engagement in counselling both general and sex-offender specific. Ms Mynard also considers that you will benefit from sex offending programs (at [111]). Dr Borg also states, ‘ongoing psychological and psychiatric input is critical to improving Mr Hayden’s rehabilitative prospects (at [55]).’ To mitigate the risk you present, she also recommends ongoing abstinence from alcohol, as well as specialist psychological input and pharmacological intervention (at [56]).
93In assessing your prospects I also take into account that you have pleaded guilty to the offending; your solid work history; your lack of criminal history for offending of this nature; your willingness to engage in counselling and treatment and your attempts to do so in custody; and the ongoing support of your family. Your sister gave evidence that she speaks with you once a week over the phone and sees you monthly. She does not in any way condone your actions and accepts that you need to be punished but believes that you can come out a better person. I have also taken into account the letter from your other sister, Lucy Hayden.
94On the evidence, while there is no real prospect of entirely eliminating your maladaptive coping mechanisms, there are no impediments to you engaging and benefiting from treatment and interventions and I accept that your prospects will be enhanced if you do so.
Sentencing purposes
95The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community. I have already referred to the importance of denunciation and deterrence in cases of this nature, along with community protection. I am also required to place weight on ensuring, as far as possible, that you are rehabilitated and reintegrated into the community.
96I take into account the sentencing guidelines referred to in s 5 of the Sentencing Act 1991 (Vic) (‘Sentencing Act’) where relevant to your case.
97In sentencing you I have also had regard to current sentencing practices, as one of a number of factors I must take into account in imposing a sentence in your case. I am precluded from taking into account sentencing practices which predate the introduction of the standard sentencing regime.
98I have also taken into account the maximum penalties, and as already noted, the standard sentence that applies to some of the charges.
99The individual sentences I have imposed are lower than the standard sentence for the relevant offence. I have considered all relevant factors in assessing your sentence, including the standard sentence, the objective seriousness of your offending, as already canvassed, the matters available to you in mitigation, your personal circumstances and the principles of law that I have already referred to.
100I also take into account the principles of proportionality, parsimony and totality.
101The principle of totality is important in your case. In assessing the appropriate orders for cumulation I have, in particular, taken into account: the need to reflect the separate criminality involved in each charge; that while there are multiple criminal acts there is one victim; and since you fall to be sentenced as a serious offender on charges 3-14 the requirement in s 6E of the Sentencing Act for full cumulation unless otherwise ordered. While I must have regard to the separate criminality involved in each offence, applying the totality principle (as qualified by the operation of s 6E) I must also ensure that the total effective sentence is just and proportionate to the overall criminality involved. As the higher Courts have stated, ‘once the sentence satisfies the punitive and mitigatory sentencing objectives for the offender’s overall conduct, the sentence is then proportionate to the offender’s criminality. No justification then exists for a more severe sentence, proportionality and just deserts defining the outer limits of punishment’ [14].
[14] Azzopardi & Ors & the Queen (2011) 35 VR 43.
102Synthesising all relevant factors and applying the relevant principles, you are convicted and sentenced as follows.
103Charge 1, 15 months’ imprisonment. Charge 2, six years’ imprisonment. Charge 3, six years and two months’ imprisonment. Charge 4, five years and six months’ imprisonment. Charge 5, five years and 10 months’ imprisonment. Charge 6, 18 months’ imprisonment. Charge 7, six years and four months’ imprisonment.
104Charge 8, 18 months’ imprisonment. Charge 9, six years’ imprisonment. Charge 10, five years and eight months’ imprisonment. Charge 11, 18 months’ imprisonment. Charge 12, six years’ imprisonment. Charge 13, five years and six months’ imprisonment. Charge 14, 18 months’ imprisonment. Charge 15, nine months’ imprisonment.
105On the summary offences, I sentence you as follows. Charge five, seven days’ imprisonment. Charge 47, seven days’ imprisonment. Charge 48, seven days’ imprisonment. I otherwise will order and make orders for concurrency and cumulation as follows. Charge 1, one month, Charge 2, six months, Charge 3, nine months, Charge 4, seven months, Charge 5, eight months, Charge 6, two months, Charge 7 is the base sentence, Charge 9, eight months, Charge 10, eight months, Charge 11, one month, Charge 12, nine months, Charge 13, eight months, Charge 14, one month.
106I confirm, Counsel, that on Charges 15 and 8 I am not making any order for cumulation and on the summary offences I make no order for cumulation. What that arrives at is a total effective sentence of 12 years' imprisonment. Counsel, were you able to follow?
107MS HURST: Yes, Your Honour.
108MR McKENRY: Yes, Your Honour.
109HER HONOUR: I have checked these numbers many times and they do amount and arrive at 12 years. The non-parole period you will be required to serve is the minimum period that I consider justice requires you must serve having regard to all of the circumstances of your case. The non-parole period must adequately reflect the gravity of your offending and the purposes set out in the Sentencing Act, including fostering your rehabilitation, which in turn will better protect the community.
110Bearing in mind in particular the nature of the offending, I do not consider it to be in the interests of justice to impose a non-parole period that is less than that prescribed. I set a non-parole period of seven years and eight months' imprisonment as the minimum term to be served before you become eligible for parole.
111Pursuant to s18 I declare that you have served 424 days' imprisonment. Pursuant to s 6AAA had it not been for your plea of guilty, I would have sentenced you to a period of 15 years' imprisonment with a non-parole period of 10 and a half years. You have been found guilty of more than two Class 1 offences, and under the Sex Offenders Registration Act 2004 (Vic) you are a registrable offender and your reporting obligations are for life.
112I must inform you, Mr Hayden, that you must register on the Sex Offenders Register and there will be documentation that you are provided with at the prison, and you will be required to serve it, it will be returned to the court to confirm that you have received it. That documentation outlines what your obligations are on the registry. There are many and it is important that you do understand what they are.
113Pursuant to s6F I cause to be entered in the records of the court that you are sentenced as a serious offender on Charges 3 through to 14.
114HER HONOUR: I make the disposal order in the terms sought. Counsel, is there anything further?
115MR McKENRY: No, Your Honour.
116MS HURST: No, Your Honour. As Your Honour pleases.
117HER HONOUR: Mr Hayden I also take this opportunity to thank those who have attended and those online for their contributions in this matter. Thank you.
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