Director of Public Prosecutions v Hearn
[2023] VCC 1519
•24 August 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL DIVISION
CR 22-01458
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TODD HEARN |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 22 August 2023 | |
DATE OF SENTENCE: | 24 August 2023 | |
CASE MAY BE CITED AS: | DPP v Hearn | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1519 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr F. Cameron | |
| For the Accused | Mr N. Goodenough with Mr C. Tom |
HIS HONOUR:
1 Todd Hearn, on 17 August 2023, you were, after a short trial, convicted by a jury of three charges of sexual assault of a person under the age of 16 and one charge of sexual penetration of a person under the age of 12. Those crimes carry maximum penalties of 10 years and 25 years respectively. Insofar as sexual assaults are concerned, as I understand it, for Charge 5, there is a standard sentence of four years. For the sexual penetration, there is a standard sentence of 10 years. At the outset, I say that I am well aware of the authority of The Queen v Brown[1] and I propose to follow that course. As the Court of Appeal said in McPherson v The Queen,
'The standard sentence is designed to represent a "mid‑range" example of [the] offence, however, the offence covers such a wide range of sexual misconduct as to make the notional "mid‑range" very difficult to identify. The misconduct can be penetration by finger, penis or tongue, or by an object. It can be momentary or protracted. It can be committed on all ages up to 12. The impact on the victim can be manageable or catastrophic. [That] is not to say the phrase is meaningless ‑ it must be given its place in the sentencing calculus ‑ but it is an intangible concept, and judges ought to be wary of affording it too much weight in the sentencing exercise. In particular, as this Court has said, judges must avoid engaging in "two‑stage" sentencing, whereby a vague, essentially intangible concept is used as a starting point from whence the sentence is adjusted upwards or downwards as the case dictates. It is a factor in the application of the intuitive synthesis, in the same way that the maximum sentence is. No more, no less'.[2]
[1] Daylia Brown v The Queen [2020] 62 VR 491.
[2] McPherson v The Queen [2021] VSCA 53 at [31].
2 I have taken the standard sentence into account as one of the factors to consider in those two charges insofar as my intuitive synthesis is concerned. My consideration of the standard sentence is of one of these factors reflected in the sentence I impose. The sentence I impose in respect of Charge 4 or 5 is lower than the standard sentence. Having identified and considered the relevant factors in assessing a sentence, including the standard sentence, the objective seriousness of the offending, and the matters available in mitigation, I have determined that the sentences I impose are the ones that are appropriate.
3 You are now 42 years of age. You obviously ran a trial, and you are entitled to do that. Unfortunately in your situation you do not therefore get the usual benefit of a plea of guilty, and there has been no remorse or empathy shown whatsoever. You do not get the discount applicable to Worboyes or any of those such matters. That does not aggravate the situation; it just means that what is normally a strong mitigating factor is not available to you. You do have a number of prior convictions, and you were incarcerated on one occasion before. However, none of those are of a sexual nature, and indeed when one looks at those prior convictions they tend to support the defence submissions that were put on your behalf.
4 In simple terms, the Crown opening involves two children, Julie[3] and Ruth.[4] The alleged offences occurred at the home of them in Rawson between July 2017 and April 2020. In June 2017, the complainants and their mum moved to the address in Rawson. Their mother's partner moved in with them a short time after they arrived there.
[3] A Pseudonym.
[4] A Pseudonym.
5 You, as I have said, are 42 years of age. You were between 36 and 39 during the offending. At that time, you were living only a short distance from the home of the complainants. You had met their stepfather in about 2011. That either happened at the home in Rawson or while you were working as a bar manager at the local cricket club. It is common ground that you have an intellectual disability of very significant proportions, and the father of the complainant took the view that you acted more like a 14‑year‑old than an adult, and he tends to be supported with that by the psychological material I have got. You are a big man, well over six feet in height.
6 The complaint Ruth was aged between eight and 11 years at the time of the offending, and the complainant Julie was aged between six and nine years at the time of the offending. I do not have to go through the detail of all this. Effectively you would come around to the house, and their mother was very concerned about you but just initially at least did not see anything direct in terms of the offending against the children. After a period of time when you would come around to speak to their stepfather, you began to talk to them more often. You would spend time alone with them. It is clear that the offending happened on a number of occasions. That is only for context, and I only sentence you on the charges for which you have been found guilty. Julie said you put your hands down her pants, touched her around the vagina and the vulva, but you did not penetrate her. She also said that you never touched her when you were inside the house, only in the backyard. So far as Ruth is concerned, the same sort of conduct occurred, mainly when you were hiding when playing hide and seek and with your touching of her, and the charges in relation to her involve one rubbing yourself against her and one digital penetration.
7 Charge 1 is Julie. She said that she was hiding in the shed and in the back, what has been referred to as the shed, and Ruth was looking for the two of you and playing hide and seek. It was pitch black and she could not see what was happening. You placed your hands down her pants and inside her underwear and kept your hands there, only removing them when you heard Ruth approaching. That was the vaginal touching.
8 Charge 2 is the sexual assault of Ruth. That was the one where you have gone up behind her and rubbed yourself against her buttocks.
9 Charge 4 was the sexual penetration of Ruth and which is by far the most serious offence for which you stand to be sentenced. You would go out with them and play on the trampoline. Ruth was alone sitting on the trampoline with you. She then said her sister had gone inside. After a bizarre conversation when you told her to place the lollies up her ass and pull them out and eat them because you were eating lollies, you put your hand into her pants, into her underwear, and you then inserted your finger into her vagina. You removed your hand from her pants and placed your finger in your mouth. Her response was 'That's really weird'. She got off the trampoline and went inside. She said that after that you would not come into the backyard. I am not too sure how that all came about. I think there might be blurred memories about how often you used to attend after that incident, but that is of no real significance in this process.
10 The last charge is a sexual assault against Julie, again the same thing ‑ hiding during a game of hide and seek. You put your hand down the back of her pants under her underwear. She responded by grabbing your hand and pulling it out of her pants because she did not like it. Unlike the other occasions on which you had done this, on this occasion you put your hand into her pants from behind and touched her buttocks and vagina, and it was in that situation that you took your hand out.
11 Ruth and Julie sometime later discussed what had happened with each other. You eventually were interviewed and denied the offending. I do not have to go into the other details of all that, but the situation is that in your record of interview you denied the offending and told the police officers you were not a paedophile. Despite your intellectual disability, which I will come to very shortly, it is clear that you know what a paedophile is, and it is clear that you knew what you were doing was wrong. Your appreciation of the consequences to the victim might be diminished, but you certainly knew it was wrong and did it repeatedly over an extended period of time. It is clear that it is a gross breach of trust ‑ in terms of you being allowed to be with those children alone, breaches for the mother, for the father, and for the girls themselves.
12 I have before me a victim impact statement from the mother which eloquently outlines the sort of damage that this offending does. She and her daughters were in enough trouble. Her partner had seriously assaulted her and has been gaoled with a minimum term. She was trying to find a safe place to live where her daughters would be safe from harm. She then was told that Rawson would be a place to live, and she went there. She expressed that she is very angry at you for what you did to those children. They were so very vulnerable, and you took advantage of them after they had suffered so much in terms of what their natural father had done. She said that she still cries and feels deep distress that she could not keep her daughters safe.
13 In these situations, one of the most serious aspects of the consequences is that parents feel as if they have failed their children, and mothers in particular have an enormous sense of guilt which they seem to find very, very difficult to get rid of. It is not the mother's fault at all obviously, but there is nothing that I can say that is going to change any of those feelings. They are perfectly natural and they are what seems to happen quite often.
14 It is very serious offending ‑ the children were very young, very vulnerable, probably did not really quite understand what was going on ‑ and objectively obviously are serious examples of this sort of offending, and were you not in the intellectual position you are in, the sentence that I impose would be very much greater ‑ and I say very much greater ‑ than the sentence that I do intend to impose.
15 I have taken that victim impact statement into account.
16 In terms of the girls, there is no victim impact statements from them, but I am well aware of the presumption of harm and their mother describes how they have become reclusive and damaged by what you did to them.
17 Insofar as the offending is concerned, as I have said, it is not isolated. You know what a paedophile is. Well, you knew what a paedophile was. On the other hand, there were no threats of violence. It does not even seem to have been a situation of let us keep all that a secret. So there is no attempts apparently that they can remember in any event to stop them from complaining about it.
18 The situation in a normal course of events calls for the application of general and specific deterrence. Here, because of Muldrock,[5] general deterrence has no significance, and the Crown concede that. Specific deterrents, on the other hand, do have a part to play. I accept that they need to be moderated, but you knew it was wrong, and you kept doing it, and you kept doing it over an extended period of time, and when interviewed you were prepared to essentially, in my view, lie about it.
[5] Muldrock v The Queen [2011] 244 CLR 120.
19 I then turn to matters personal to you.
20 In what has to be a head sentence with a minimum term, I am aware that you are to be placed on the Sex Offenders Register, and I advise you the reporting conditions will be for life, and that will sent to you at the gaol. On Charges 4 and 5, you will be sentenced as a serious sexual offender. I am aware they are to be cumulative unless I otherwise order, and I do so otherwise order for reasons of totality. I am aware that community protection is the principal sentencing purpose and the Crown do not see a disproportionate sentence. I direct that that be entered in the records of the court.
21 This is a situation where the principles involved in Verdins[6] and Muldrock, it is almost a perfect example of them in many ways. I have before me ‑ and very helpful submissions from your counsel too, I might say ‑ a number of reports which essentially all say the same thing, but I just perhaps need to go through the circumstances with this.
[6] R v Verdins [2007] 16 VR 269.
22 You were born with Klinefelter's syndrome, which I will just describe in a moment, and it was diagnosed when you were about six years of age. You had had all sorts of difficulties because of that. It is clear that that has resulted in or you also had intellectual disability in addition. Since the age of six, you have wondered, you have been difficult to control. There was problems with fire lighting. Even at the age of 15 when you were being interviewed in respect of this, it appeared clear to the interviewer that you showed no remorse for any of the actions. You were disruptive at school. It is all consistent with the deficits that you do have. In these circumstances, you have no empathy for the victims, and again that is all part and parcel of your background.
23 Your mother in particular and your father tried very, very hard when you were young. You were sent to various special schools. They did everything they could for you, but unfortunately in the end you had achieved very little. I will not go through all the details of it, but it seems clear that when you were a child you had an isolative life, had few friends, and preferred your own company and very simple hobbies such as collecting Matchbox toys.
24 It is interesting to note, and I do not know what the consequence of all this was, but when you were interviewed at 15, as your sexuality was brought up ‑ and it relates to the XXYY syndrome, I suspect ‑ you became extremely irate with the interviewer. Whether there is unresolved aspects, I do not know. No one seems to have diagnosed it, and it is matter ultimately for the parole board to take into account if they need any more additional material.
25 Klinefelter's syndrome is, in simple terms, that you have XXYY syndrome, and that simply means that you have additional chromosomes. They say in that report, when it describes the nature of the condition, that you have an IQ in the 60s. I note that back when you were 15 your IQ was assessed at 54, which is extremely low.
26 You have all sorts of difficulties and always have had. You have difficulties with executive planning. This was emotional self‑control, overreaction, lack of empathy, and all sorts of problems that comply with that. Again, I do not think I need to go through all those ‑ everybody knows what I am talking about.
27 When you were 21, you were still having enormous difficulties. You had no motivation in household activities, just no interest in anything. All you wanted to do is wander around. And again that is not your fault, but it is just the way it is.
28 So I have taken all those reports into account.
29 There is a very old report from Mr Joblin from back in 2005, and he goes through it. He thought you had a serious alcohol problem and essentially sees what everybody else has seen. He points out that the relationship between Klinefelter's syndrome and criminality is somewhat contentious, but it is clear that you do have a markedly lower intelligence, and he opined back then that it could lead to confusion and disorientation, particularly in an antisocial environment.
30 One of his concerns was, at the time that he did that report, that you were in custody and had been in the prison for a short period of time and were starting to develop an admiration for the other prisoners. That is an extreme concern to me, but there is nothing much I can do about that. In these circumstances, I am sure the gaol, who will receive a copy of these sentencing remarks, will be aware of that.
31 Mr Joblin pointed out it was difficult to know what could be done to assist you, and the reality of it is, in terms of the condition, not a lot. However, particularly over the last year or so, I have received some very helpful reports in relation to you. You have been living with your brother for a number of years now. He obviously takes care of you. You have workers with whom you get on. I suspect that it is probably a pretty difficult proposition. You have hobbies like going to auctions and buying things and selling trinkets and giving gifts of trinkets, and you just live a very simple existence.
32 You, in terms of looking after yourself, have great difficulty with that, and again I am not going to humiliate you, even if you do not understand me, by not going through all those matters. Essentially you had no social interaction. You do not use email or social media. You do not work or study or volunteer. It is difficult to get you to even go shopping according to the reports that are before me. As I said, it is a very sad state of affairs.
33 However, the report from the CYA which is before me is encouraging in that it would appear that over the last year or so you have been able to improve, that you have been able to use supports that are in place, that you have been living Rawson, you have not got angry as much anymore, and your wandering has become less, and you appear to have been doing better. That is encouraging, and again these reports will go to the parole board, and ultimately it will be a matter for them. You will have NDIS supports upon your release. I am of the view that they are very helpful in these areas. They do liaise with the parole board.
34 It would appear that now the complaints and their mother have left Rawson. It may well be much easier for you in a situation of being paroled. It is not very pleasant reading the mother's victim impact statement where she says about how the children were not coping and the difficulties in the town and that essentially she had to quit her job in Walhalla and now they have all gone away because of what you did.
35 As I say, the principles of Verdins and Muldrock come into play ‑ and I do not have to detail what they are, everybody knows what they are ‑ but the fact of the matter is that the offending does call for a gaol sentence. There can be no other. It has to be one that is significant. As I already indicated, the sentence I would have imposed I think ‑ well, I will say this ‑ would have been double what I am going to give you if you had not have had these intellectual difficulties. You are seen now not to have drug or alcohol problems. Gaol, I have no doubt, will be very difficult for you. You are big, so you will probably be a target. I hope not, you will be hopefully kept in a protective environment, but I would have thought your personality and the difficulties that you have are going to cause conflict with other prisoners, and I hope you do not do what Mr Joblin was concerned you would do, and that is identify with the other prisoners and see them as some sort of role models. NDIS will continue to work with you whilst you are in gaol, and hopefully upon your ultimate release things can fall into place. But at the end of the day, two very little girls have been outraged I think was the old word, and their mother has suffered, and I have got no doubt they would have suffered too in a very significant way.
36 Your prospects of rehabilitation, I have got no idea. The risk of you reoffending is described as low, but I am concerned that you denied this offending and have clearly no empathy for the victims or people that you interact with, but I will work on the basis that it is low, and I am sure the parole board will not let you out if they think otherwise, but that is really a matter for them.
37 So taking all those matters into account as best I can, I propose a sentence which, as I have already indicated, would be very much higher if you did not have that constellation of problems. So Charge 1, six months, Charge 2, seven days concurrent, Charge 4, three years and six months, Charge 5, six months. I direct that three months of the sentence imposed on Charge 1 and three months of the sentence imposed on Charge 5 be served cumulatively upon each other and upon the sentence imposed on Charge 4. That gives a total effective sentence of four years. In these circumstances, I think it is in the interests of justice that I give a lower than normal minimum term. There will be some prospect of having you released into the community. If that is not the case, that is not the case, but I think it is the interests of justice that that be available to the parole board if they wish to avail themselves of it, and accordingly I direct you serve a minimum term of two years before becoming eligible for parole. I direct that seven days be reckoned as having been served under this sentence. And there's no other orders I need to make, are there?
38 MR CAMERON: No, Your Honour.
39 HIS HONOUR: No, all right, thank you for that.
40 MR CAMERON: There was the Sex Offenders Register.
41 HIS HONOUR: Yes, I've done that.
42 MR CAMERON: You've done that.
43 HIS HONOUR: Yes, it's all done. All right. Like I said, so thank you, Mr Cameron and your instructor for the circuit.
44 MR CAMERON: Thank you, Your Honour.
45 HIS HONOUR: All right, thank you, Mr Goodenough, thank you, Mr Tom.
46 MR GOODENOUGH: Thank you, Your Honour.
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