Director of Public Prosecutions v Hazeldine

[2019] VCC 1302

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 19-00544

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHILLIP HAZELDINE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	8 August 2019
DATE OF SENTENCE:	13 August 2019
CASE MAY BE CITED AS:	DPP v Hazeldine
MEDIUM NEUTRAL CITATION:	[2019] VCC 1302

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr A. Waters	Galbally & O’Bryan Lawyers

1HIS HONOUR:  Phillip Hazeldine, you have pleaded guilty to one charge of indecent assault of a male person under the age of 16.  That charge is representative and carries a maximum penalty of five years' imprisonment.  You are now 72 years of age.  You pleaded guilty at the earliest reasonable opportunity and you must get the benefit of that.

2I accept on the material before me that you have expressed appropriate remorse and indeed deep shame over your offending back in the 1980s.  You obviously must get the utilitarian benefit of that plea of guilty and leaving tendency arguments aside, it is a matter where the situation is that often people chance their arm in such matters.  You did not and you must get the benefit of it.

3You have no prior convictions as such, but there are other findings of guilt relating to other victims which I will outline very briefly in a moment.  There has obviously been a delay of approaching 37, 38 years since the offending took place.  That is often the case in these circumstances and I fully understand the reasons for it, but that is a matter I do take into account in this sentencing process.

4Because of the nature of the offending, you will be placed again, as I understand it, on the Sex Offenders Register.  I must advise you that the reporting conditions of that will be for life.  I will just ask you now to acknowledge receipt of that.  Whether that is in fact what happens, I do not know, but it is not my jurisdiction to interfere. 

5Yes, thanks for that.  I also note that you will be sentenced as a serious sex offender on this charge because of other matters that you had been previously convicted on.  I am aware that public community protection becomes a principal sentencing purpose.  I am aware that accumulation is otherwise ordered and clearly here there is no accumulation and the Crown do not seek a disproportionate sentence.  I direct that that be entered in the court records.

6The complainant in this matter is now 49 years of age.  I will not use the complainant's name which saves the difficulty of having to anonymise this all later.  At the time of the offending, he was residing with his father and siblings, and his mother had died in 1978.  You lived next door to the complainant's family.  He went to Gippsland Grammar Junior School from Grade 2 until Grade 6 and was attending special education classes with you.  You obviously at that point in time were in a position of trust and I will come to that again in a moment.  At the time of the offending, he was aged between 10 and 11 years.

7Between the 22nd and 29th of March 1980, a Great Victorian Train tour trip was organised for a number of boys from the school.  You were a supervisor on that trip and it involved train travel for approximately a week.  The train travelled into country Victoria and then back again.  Students stayed in cabins and bunk beds were pulled down from a wall.  The complainant was on a top bunk bed and another witness was on the bottom bunk bed.

8On one evening of the trip, you entered the cabin of the complainant under the guise of checking on students in the cabin.  He was asleep.  You entered and you were carrying a flashlight.  You leant over the complainant's bed and manipulated the bed sheets and his pyjama pants by pulling them down from the front.  He believes that the flashlight was underneath the blankets.  You fondled his penis by rubbing or stroking it for approximately 10 to 15 minutes, though in these circumstances I am always a bit apprehensive about accepting a child's memory of how long something took, but it certainly was not momentary.

9You said something to the complainant during the offending but he cannot remember what it was.  The same conduct occurred on another two to three occasions during the course of that trip.  As I said, the charge is representative, not rolled up and I treat it on that basis. 

10The other incidents that took place were very similar. No complaint was made and in the victim impact statement, the complainant talks about how he had been too embarrassed to say anything or do anything about it and indeed had tried to suppress his recollections of it over a long period of time.  His victim impact statement outlines clearly why matters such as this are treated seriously by the court. There is as an ongoing long-term effect on a child and often extends into their adulthood.  Yours was very much a breach of trust.

11In the normal course of events, an active custodial sentence would be imposed.  In your circumstances, the submission is that for reasons that involve what has occurred subsequent to all this, such a sentence would be appropriate but in all the circumstances should be wholly suspended.

12The very helpful chronology that was provided by your counsel gives rise to the reasons why I am not going to give you an active sentence.  You, in 1998 were sentenced to two years' imprisonment and ordered to serve 12 months before being eligible for parole for offending against children at that school that had happened in the early 1980s.  You served that sentence.  During the course of it, you completed sex offenders programs and you completed - fully completed the program whilst on parole.

13You had previously become a psychologist and in fact you were de-registered.  On the 14th of October of 2000, that parole was completed.  I point out at this stage I do have the benefit of the sentencing remarks of Her Honour Judge Hogan, which I will come to in a moment.  I make it clear that those sentencing remarks are fully restricted, so I have to be very careful in terms of what I quote from them otherwise I would simply annex them to these sentencing remarks, which would save quite some time.

14You were employed as a teacher at the school from 1971 to 1987.  You have two children.  Your wife was with you during that period of time and she has endeavoured to assist you since and be of support to you.  You are both in ill-health, and I again take that very much into account.  You are both now getting on in years and again, that has to be taken into account.

15In 1986 or thereabouts, as a result of allegations that were made though not proceeded with, you agreed to leave the school and go elsewhere.  You then went to Ballarat and purchased a café which was ultimately unsuccessful.  You worked with the Department of Human Services in open employment, and clearly as the material would suggest from what I have read, that you were very good at that.

16In 1997, when charged as I understand it with the first lot of offending, you began to see a psychiatrist who you continued to see for an extended period of time.  I will refer to some comments of his in a moment.  In 2002, some years after you had completed your parole, you were charged with another number of indecent assaults again relating back to the period between 1977 and 1981. 

17You pleaded guilty before a magistrate, and in September of 2002 you received an aggregate sentence of 18 months, of which 12 months were suspended.  I do not know how it could have been an aggregate sentence in any event, but it turned out ultimately after you had done two months of - sorry, yes, 18 with 12 of suspended - after you had done two months of that sentence, Justice Beach quashed it on the basis that it was invalid and apparently the Magistrates' Court had no jurisdiction to have heard it.

18You were then put through the ordeal of being committed to the County Court.  The matter proceeded on a hand-up brief.  That was with plea reserved, but there were reasons for that which do not indicate a lack of remorse.  Then on the 16th of October 2003, you pleaded guilty in respect of those matters and received a sentence of two years and 11 months, wholly suspended for a period of two years.  It is my observation that sentence was invalid too and I do not know would have happened if you had breached it, but be all that as it may.

19I will just very briefly go through the remarks of Judge Hogan.  That suspended sentence obviously expired in around about 2005 and it was not until September of 2018 that you found yourself being interviewed for this particular matter with this particular complainant.  I also note that in earlier this year, you suffered a severe heart attack and you spent six days in intensive care.  I have medical material that supports all that and again, I think just the simple acknowledgement that you and your wife are both of ill-health is sufficient.

20The situation is that the matters for which you were sentenced in 1988 involve six complainants given between January 78 and November of 1986.  They were a very similar nature to this and indeed in one of these circumstances, it might have been the second, it would appear that offending occurred against another boy on the same train trip.

21It is clear, Her Honour said, that from your record of interview had difficulty remembering the names of the complainants after such a period of time.  She went through the history of it and again, I do not think I need to go through that other than the simplistic terms I already have.  She had the benefit of reports and evidence on oath from your wife, and again I have had the benefit of being able to read through all that.

22The fact of the matter is that since 1998 you have been unable to work.  You de-registered as a psychologist, you have been on the Sex Offenders Register throughout that period of time and I am told and accept from the Bar table that you have complied with it.  I have looked at the set of circumstances to see why Her Honour wholly suspended it and I would agree entirely with her.

23The material that was placed before her from your psychiatrist, Dr Senapathy, was that the features or your circumstances were very difficult to diagnose.  He took the view that yours was rather than sexual offending was closer to a, 'Obsessive compulsive behaviour of a sexual nature'.  By the time he began seeing you some 12 or so years after the event, it was well under control.  In the second report which he had tendered, he confirmed that you had done the sex offenders rehabilitation programs both in and out of prison.

24He described you as a, 'Sad and broken man with a sad past, present and future'.  He went on again to say that, 'Rehabilitation of sex offenders is not always successful'.  He said that you are one of the rare success stories.  There is no doubt in his mind that this success is due to your genuine guilt and remorse and your determination to rehabilitate and become a responsible citizen.

25He described that effect of imprisonment that you had had as having been devastating in that you were withdrawn, isolated and ashamed and felt alienated by the general community.  Upon your release, you suffered guilt, chronic insomnia, dreams, flashbacks of prison, police, courts, and judges.  Those matters obviously continue and you have paid a very high price indeed for the offending that occurred back then.

26Having, as I have said, examined Her Honour's sentencing remarks and the way she went about it, I can see that if this matter had been brought on before her at that time, I do not believe that she would have imposed any form of active incarceration for it; it would have been consumed within the others.

27By the time she sentenced you, you had done one significant period of time, you had done 12 months on parole, you had done two months of a sentence that was invalid.  And I think in the end whilst, as I say, in the normal course of events this offending would attract an active custodial sentence, I have to use a vernacular.   Enough is enough.  The prospects of your rehabilitation are obviously very good.  There has been no suggestion of you reoffending since and there is no suggestion of you reoffending in the future.

28In all those cases, and I take into account obviously the damage that has been done to the victim and I have read a couple of times the victim impact statement that has been tendered.  All that I can really do is sentence you as would have been at the time of Her Honour's sentencing, so accordingly on that charge you are sentenced to be imprisoned for a period of 12 months.  I direct that that sentence be wholly suspended for a period of two years because I consider it in the interests of justice to do so.

29Having imposed that sentence, I must now advise you that should you breach this suspended sentence by offending certainly of a similar nature, you have to show exceptional circumstances why that sentence would not be imposed.  And whilst I accept that there is virtually no risk of that occurring, I make it very clear to you that if you did, it would be almost impossible to avoid undergoing that sentence.

30All right, 6AAA, 18 months suspended.  Nothing else I need to do? No.  All right, yes, thanks for that.  Thanks, Mr Waters.

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