Director of Public Prosecutions v Henshaw (a pseudonym)

[2021] VCC 1657

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

GORDON HENSHAW (a pseudonym)

---

JUDGE:	HER HONOUR JUDGE M. SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	Trial: 19 – 22 April 21, Judgment: 28 May 21 and Plea: 19 August 21
DATE OF SENTENCE:	21 October 2021
CASE MAY BE CITED AS:	DPP v Henshaw (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1657

REASONS FOR SENTENCE

---

Subject:         Criminal Law
Catchwords:  Rape

Sentence:TES – 20 months imprisonment with a minimum of 10months to be served to be eligible for parole.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D Plummer	DPP
For the Accused	Mr D Cronin	Emma Turnbull

HER HONOUR:

1At the outset, I remind those listening that publication of anything likely to identify a complainant in a sexual offences case is prohibited by an Act of Parliament[1].  In the published reasons for sentence, pseudonyms will be used.

[1] Section 4 Judicial Proceedings Reports Act

2I acknowledge that Jonathon Henshaw[2] is listening to these sentencing remarks. I indicate that to make it clear to whom I am referring, I will refer to him by his first name or as ‘your son’ but I mean no disrespect to him in doing so.

[2] A pseudonym

Introduction

3Gordon Henshaw[3], in a judgement delivered on 28 May 2021, I found you guilty of one charge of rape after a Judge-Alone trial.  Rape is an offence with a maximum sentence of 25 years' imprisonment.  As the offence was committed after 20 March 2017, it is a Category 1 offence, meaning that a sentence of imprisonment must be imposed. 

[3] A pseudonym

4I sentenced you on the basis of the findings I made, as set out in my judgement[4]. 

[4] [2021] VCC 1578

5In brief, I found that on evening of 28 June 2017 you were the aggressor in a physical altercation which had been going on for hours with your adult son at the home you then shared together with your former wife who was present.  That you were extremely angry and had been unable to gain an advantage, despite your, what was described as abnormal strength in your fit of rage.  I was satisfied that you intentionally penetrated your son's anus through his clothing, likely as a violent means of asserting your superiority in order to win the fight.  The act of penetration did in fact end the physical altercation.

Acceptance of responsibility and remorse

6You pleaded not guilty, as you were entitled to do, submitting through your counsel that any act was not intentional and did not involve penetration. 

7I was informed by your counsel on the plea that you did offer to plead guilty to common assault. Your counsel submitted that offer, showed a willingness to accept some responsibility for your wrongdoing.  I find the offer does show some acceptance by you of being the perpetrator of some act, but not the much more serious act constituting the crime of which you have been found guilty. As you went to trial, the benefits that accrue to a person who pleads guilty are not available to you. 

8There was some equivocal remorse shown by you in speaking to your son in the pretext telephone conversation in February 2019, which I accept you were not aware was being recorded.  I note that this recording was not in evidence at the trial, other than some passages that were put to your son during cross-examination and re-examination.  I have only read and had regard to the whole of the transcript since the plea hearing because your counsel made submissions that you had made some acknowledgement of wrongdoing and, at the end of the conversation, told your son that if he wanted to meet up, the door was open. 

9You did say to your son in that phone conversation that, at that time of your life [when the offence occurred] you were out of control, that [at the time of the conversation] you thought about it every night and thought about him every day and wished you could go back in time and that neither he nor his mother were to blame.  If anyone was to blame, it was you[5].  Asked by your son what was the worst part for you, you responded, “Since the separation?”,  when he clarified he was referring to that night, you said it was the worst night of your life and onwards because you no longer saw your son[6].

[5] Depositions, p77

[6] Ibid, pp88-89

10Unfortunately, the transcript does not provide a full account of your words as you were speaking very softly at times, but it nevertheless seems clear that you were not accepting your son's version of events, nor did you express any remorse, qualified or otherwise, for the act of penetration which he said had led him to bleed for days[7].  I describe this conversation as showing equivocal remorse, because you were obviously very sorry that the events of the night had happened, and led to your separation from your son, but you were not expressing any remorse at that time for causing him pain, suffering and distress. 

[7] Ibid, p90

11You expressed qualified remorse to a psychiatrist Dr Deacon whose report I received[8].  He interviewed you after the trial.  Although Dr Deacon did not question you about the offence, he noted that you, “remarked that [you] felt remorseful if you had contributed to any pain or suffering during the 2017 incident.”[9]  You also told Dr Deacon that you had tried speaking to Jonathan and that you had tried to apologise for failing as a father[10].  You did not say that you had tried to apologise for the act I have found you perpetrating on him, or for any act that night. 

[8] Exhibit 2, dated 29 June 2021 (no page or paragraph numbers)

[9] Exhibit 2, under heading Psychiatric History, Emphasis added

[10] Above, under heading Relationship History

Impact of the offence on your son.

12From Jonathan's evidence at the trial and from his Victim Impact Statement[11], I have no doubt that he has suffered from the offence you committed against him.  You did not just contribute to his pain and suffering - you caused it.  As Jonathan did not request the Victim Impact Statement be read out, I will not quote any part of it in order to adhere to his wishes.  Jonathan can be assured that I have read it and take the contents very much into account in deciding the appropriate sentence.

[11] Exhibit B

13Apart from the Victim Impact Statement, I have regard to the findings I made from his evidence at trial, which included that, while the act of penetration may have been for only a few seconds and was through clothing, the degree of pain experienced by Jonathan, his immediate scream, the bleeding that followed, the ongoing physical trauma of pain and an inability to use his bowels for a few days, all show that it was an act intentionally performed with considerable force.  I take these matters into account in deciding the appropriate sentence. 

Assessment of the gravity of the offending and culpability

14The prosecutor submitted that the offence of rape is generally regarded as a very serious offence, as demonstrated by the high maximum penalty, and I add, by the law that demands that a sentence of imprisonment must be imposed upon conviction for that offence. 

15The prosecutor conceded that in this case, it was a spontaneous decision to commit the act of penetration, made in order to assert superiority over your son and, as I have said, lasted no more than a few seconds.  The prosecutor submitted that the short duration of penetration was likely because of the pain-induced reaction by Jonathan and further submitted that any act of non-consensual penetration is objectively serious, irrespective of the form and extent[12] of penetration, and that your moral culpability is relatively high. 

[12] Which I took to mean duration

16Your counsel submitted that the offence occurred in the context of a deteriorating relationship between you, your former wife, and your son who became involved in disputes between his parents, with a number of previous altercations involving Jonathan that on occasions had moved from verbal to physical altercations.  Your counsel referred to Jonathan's evidence that there had been a previous instance where you had grabbed him in a similar fashion, Jonathan thought to destabilise him. 

17It was further submitted on your behalf that, because of your right arm being deformed, as it has been described in the material, you are vulnerable and weaker than an able bodied person and that, at the time the offence was committed, you were involved in a physical wrestle with someone who was younger, stronger and bigger. 

18In my judgement I said,

“'There was nothing accidental about the accused's decision to do the act of forcefully penetrating his son's anus, whether in the heat of the moment or as the result of a build-up over a number of hours of him exhibiting extreme, irrational anger in the physical altercation that night.”[13] 

[13] [2021] VCC 1578, [333]

19On reflection, I do not think that these need to be alternative bases for your decision to do the act; that is, in the heat of the moment or as a result of a build-up over hours.  I find that this was a spontaneous act by you, in the heat of the moment, but it was also a decision made by you in the context of the build-up of extreme, irrational anger over a number of hours. 

20I have rejected the suggestion that your hand slipped as you were grabbing your son's buttocks during the wrestling in the ‘final incident’, as it was called at trial.  I have also rejected the suggestion that your son had you in a headlock.  I also take account of the description your former wife and son each gave in evidence of your seemingly superhuman strength when you were so enraged and that this was not an isolated reaction. 

21Your counsel has submitted that, because of factors operating on you, making you feel vulnerable and weaker than an able bodied person, there was 'no way to win' except by grabbing the buttocks of your son and 'in that circumstance, penetrated him'[14]. 

[14] Both references are from notes of oral submissions made on the plea, as well as the written submissions.

22It may be that, on the spur of the moment after many of altercation, penetrating your son's anus with your finger was all you thought you could do to bring the fight to an end.  In my view, you could have simply let go of him, thereby immediately de-escalating the fight.  I find that you did not do so principally because you were so enraged.  While I accept that you felt vulnerable because of factors personal to you to which I will turn shortly, it may be that those factors also contributed to you becoming so enraged, as dramatically described by your former wife and son, that you could not do that simple thing of letting go to end the fight. 

23I found at the trial that the act of penetration was not sexually motivated.  I do find that it was a violent act of penetration perpetrated on a person who you loved and still love and who was entitled to be respected and safe in his own home. 

24In my long experience, the circumstances of this offence are, if not unique, then very rare.  Taking into account the impact on your son, the violence of the act, the fact that it was perpetrated on a family member in the home but was of very short duration through clothing and not sexually motivated, I assess the offence as a relatively serious example of the crime and accept the prosecution submission that your moral culpability is ‘relatively high’. 

Factors in mitigation

25You have no criminal history and I take that into account in your favour.  You are to be sentenced as a person who had not offended in any way before the age of 49.  You have not committed any offence since. 

Personal circumstances

26You are now aged 53 years and will turn 54 next week.  You were aged 49 at the time of the offence. 

27You were born with a deformed right hand and a much shorter and weaker right arm as a result of your mother taking thalidomide during her pregnancy.  You were self-conscious about your right hand from a young age and suffered teasing and bullying at school. 

28You have a close relationship with your sister, who lives interstate.  Your parents had a volatile and violent relationship, with your father drinking to excess and gambling, being physically abusive to your mother whom you loved and physically punitive to you.  You did not form a bond with him but, nevertheless, lived with him for six months after your parents separated when you were 18 and he was experiencing depression.  Both parents are deceased. 

29Despite this difficult childhood, you completed year 11, performing well and despite your disability, engaged in sports where you could use your left arm.  You had a dream to become a police officer and passed the entrance examination but were informed you could not be a police officer due to your disability and so withdrew your application. 

30You began working as a bank teller, then obtained a Diploma in Banking and Finance, progressing over 17 years to senior business manager.  You then worked at the Australian Tax Office for four years, and then in security for five years.  You made good, long standing friends in these workplaces, three of whom have provided references[15], attesting to your previous good character, your struggles with your disability, your work ethic and leadership, and their assessment of you as kind and generous and the offence not at all in keeping with the person they know. 

[15] Part of Exhibit 4

31Finally, you landed your ‘dream job’, working in the licensing regulation branch as an unsworn member of Victoria Police, feeling well supported and accepted and enjoying a camaraderie that you had not experienced before. 

32You have lost that cherished employment as a result of your conviction for this offence.  It was submitted that it will likely be difficult for you to regain employment. 

33Despite your physical disability, you are described in one of the references provided to me[16] as a loyal volunteer firefighter in the South Morang Fire Station and, in that role, fought the Black Saturday fires on 7 February 2009. 

[16] Above

34As I detail events after your marriage to Karen Dunlop[17], I note that I have only received your version of these, other than the events surrounding the offence which were the subject of evidence from Ms Dunlop and Jonathan at the trial. 

[17] A pseudonym

35You married Karen Dunlop in the early 90s and, to Dr Deacon, you described the marriage as happy and stable for 10 years.  Problems apparently arose over the issue of having children.  You had never wanted children and felt you would not be a ‘fatherly’ person.  However, you agreed to the idea of process and Jonathan was conceived.  You told Dr Deacon that your former wife told you she had only formed a relationship with you so she could have a child and this changed the relationship between you.  Like your father before you, you say you never bonded with your son. 

36

Arguments developed between you and your former wife which sometimes became physical and, as Jonathan got older, he became involved, and your relationship with him also deteriorated.  You told Dr Deacon that you had been soft on disciplining Jonathan when he was growing up and asked him to be more respectful in around 2008-2009.  I note that Jonathan was then aged 9-10 years old.  You also described the relationship with James as being unsettled and volatile, leading to the ‘incident’ on 28 June 2017 when Jonathan was aged about

17-18. 

37That incident led to your separation from Ms Dunlop and your son.  Within a day or two, you moved out of the family home and later went through what you describe as a bitter divorce. 

38In 2019 you met a Vietnamese/Australian woman whom you married in February 2020.  She provided a reference[18] in support of you, describing the loving relationship you share and how generous and caring you are to her, particularly with regard to her health needs and in supporting her family in Vietnam. 

[18] Part of Exhibit 4

39Your wife, who attended court today to support you, has significant health problems according to the letter I received from her doctor[19].  She relies on you for her daily needs, as well as work around the house.  Further, she notes in her reference that she has had no income since COVID-19 destroyed her catering business.  Stress can affect her health and I am told that both of you found the trial process hard, which is to be expected.  While the hardship to her of your impending imprisonment cannot be taken into account under Victorian law, I do take into account the effect on you in prison, knowing that you are not there to support her physically, emotionally and financially.  Fortunately, she does have three adult sons who also live in Melbourne.   

[19] Exhibit 3

40In your 30s, you began a pattern of drinking 2 -3 bottles of wine a week.  When you were charged with this rape in 2019, that pattern increased to a bottle a day, commencing at 3-4pm, and consuming the bottle over a few hours.  Since 2008, you have been prescribed Venlafaxine which apparently assisted you to feel more relaxed and improved your mood, although you recognised that your excessive drinking likely mitigated the benefits of the medication.  You are prescribed Effexor. 

41Dr Deacon assessed you in June this year for any existing mental health conditions you have and to provide an opinion as to your vulnerability in custody.  Based on what you reported to him, Dr Deacon described your mental health difficulties as emerging in the context of marital stress, including you feeling unhappy and intermittently suicidal in 2007. 

42In 2008, you began therapy with psychologist Pamela Copperwaite who provided evidence in this trial, some of which I did not accept[20].  You told Dr Deacon and stated in your police interview that you consider Ms Copperwaite to have been very helpful over the 13 years you have been seeing you, assisting you to manage your anxiety and improve your coping skills in the event that you were upset or distressed. While it is to your credit that you sought out assistance and have continued with it over such a long period, in my view, there was little if any assistance provided by Ms Copperwaite as to your emotional regulation.  Had there been, you may have been able to prevent getting into the enraged state that you did or been able to de-escalate the situation on 28 June 2017 and similar events leading up to that date.

[20] [2021] VCC 1578, [190], [258]–[268]

43According to Dr Deacon, you reported to him experiencing a range of fluctuating depressive symptoms which he described as 'consistent with a major depressive disorder, chronic, recurrent and intermittently in remission'[21]. He considered you to have mental vulnerabilities and said that, '[i]t can reasonably be anticipated that [you] could experience prison as more onerous than a person with stable mental health’, that you ‘can be considered vulnerable to experiencing a deterioration in your mental state and a worsening of depression’, and you ‘could foreseeably be targeted by other prisoners, given [your] obvious physical disability’ and your ‘work history with Victoria Police could also be considered a risk factor.'[22]

[21] Exhibit 2, under heading Opinion and Recommendations point 9

[22] Above, all references, point 12

44

Your counsel submitted that on the basis of your personal circumstances and

Dr Deacon's report, two clear points may be made: because of the abusive childhood you suffered, you did not think you would be a good father and this led to a reluctance to have children and through your childhood, you suffered the physical and mental impact of your disability.  Your counsel submitted that this combination led to your feelings of physical inferiority which caused you to act as you did in the desperate struggle with your son and, he submitted, this was to be contrasted with the person you are considered to be by your friends and your wife, as shown in the character references. 

45There is evidence, based on research, of a link between exposure to family violence in childhood and the intergenerational transmission of violence, as well as drug and alcohol abuse.  Children whose formative years are effected, are vulnerable to developing long-term mental health issues[23] and exposure to family violence in childhood is itself a risk factor for both experiencing and perpetrating family violence[24]. 

[23] Janet Phillips and Penny Vandenbroek, ‘Domestice, Family and Sexual Violence in Australia: An Overview of the Issues’ (Research Paper, Parliamentary Library, Parliament of Australia, 14 October 2014) 19; Royal Commission into Family Violence (Final Report, March 2016) vol. 2, 111

[24] Australian Institute of Family Studies, “Children’s Exposure to Domestic and Family violence: Key Issues and Responses” (December 2015)

46On the basis of the evidence and research I have just referred to, your mental vulnerabilities may well have developed, at least in part, from your exposure to alcoholism and family violence as a child through no fault of yours.  Further, abuse of alcohol may also have arisen from your childhood experiences and that abuse will have lowered the efficacy of the anti-depressant medication. 

47Your counsel submitted that it is against your childhood background that the relationship with your former wife and your son deteriorated to the point that it did, leading to the offence being committed and that, while in that relationship, your emotional regulation could not be achieved.  He pointed to the reference from your current wife and those of your long-term friends in order to submit that you do not have emotional regulation difficulties in general.

48I repeat what I said earlier: while I accept that because of these personal factors, you felt vulnerable during the hours of altercation with Jonathan on that night, it may also be that those same factors of childhood abuse and the physical and mental impact of your disability contributed to you becoming so enraged, as dramatically described by your former wife and your son.  While I take into account that with your current wife and your long-term friends you seem to be a different person, I think there is still a question mark over your emotional regulation. 

49The prosecution accepted that you have long-standing depression and an ongoing therapeutic relationship with Ms Copperwaite but submitted that the evidence from Dr Deacon did not meet the threshold for me to take it into account in accordance with the law[25], as Dr Deacon has not made a clear finding or rendered an unqualified opinion.  The prosecutor did concede that your physical disability would make prison more burdensome for you and that if it became known that you had worked for Victoria Police, that may also be a risk to you. 

[25]R v Verdins [2007] VSCA 102; 16 VR 269

50I agree with the prosecutor that Dr Deacon's statements at point 12 of his Opinion and Recommendations are not counted in terms of a firm conclusion. However, I am prepared to accept that your imprisonment will be more onerous for you because of your mental and physical vulnerabilities, that there is a possibility of a worsening of your mental health as a result and that this possibility will be exacerbated by your fears that you may be targeted because of your disability and also, if it becomes known, because of your former employment with Victoria Police.  These are matters that Corrections Victoria should monitor. 

Rehabilitation

51It was submitted on your behalf that, despite your mental health vulnerabilities, you do not require a long period of treatment or supervision as part of your sentence due to the factors in your favour. 

52Because you have no criminal history, have strong support from your wife, your sister and your friends and have continued to see Ms Copperwaite since the verdict with whom I accept you have a good therapeutic relationship, I find that your prospects of rehabilitation are good, even with your mental health vulnerabilities. 

Risk of reoffending

53

I find that you are a very low risk or reoffending, certainly in respect of offending in the same way or with the same victim.  Your relationship with Jonathan is now |

non-existent, but I accept your counsel's submission that, even if it were to be revived, there would be no risk of the same thing happening again. 

54As well as the potential impact of imprisonment on your mental health and your concern over your wife's situation while you are imprisoned, I take into account that you are a first time offender and that you have not been in prison before.  I also take into account that you will be entering prison during a time of uncertainty, given the COVID-19 pandemic and will have to undergo the quarantine period that Corrections Victoria has in place for those entering custody. 

Sentencing submissions

55The prosecutor submitted, and I accept, that the principle of general deterrence is a very significant purpose in sentencing for the crime of rape.  General deterrence means that by my sentence of an offender, I must seek to deter others from committing that crime. While I accept the significance of that principle when sentencing for the crime of rape, in my view, the facts in this case are so unusual as to make my sentencing view not a particularly useful vehicle for general deterrence. 

56The prosecutor also submitted that the principle of specific deterrence by which my sentence must seek to deter you from reoffending, remains a relevant sentencing purpose, but conceded that it is of less significance in your case due to your lack of prior convictions. I accept that it is of less significance for that reason but also find that the impact on you of your passage through the system of justice, from being charged to being placed on trial, receiving the guilty verdict and having this sentence of imprisonment passed on you will likely be a deterrent for you. 

57Lastly, the prosecutor submitted that a term of imprisonment was required, both as a result of being a Category 1 offence and as a result of the circumstances of the offence.  He made no submissions as to the length of an appropriate sentence or as the appropriateness of a head sentence and non-parole period, which is customary.

58Your counsel submitted that, while a sentence of imprisonment with a head sentence and non-parole period would usually follow a conviction for rape or would otherwise be considered to be a departure from current sentencing practice, this is a unique case and sentencing statistics for the offence are of little value, he submitted.  He further submitted that, in all the circumstances, a short period of imprisonment is the appropriate sentence.

Conclusion and sentence order

59While I accept that you are not a person for whom a period on parole is necessary for your rehabilitation or for the protection of the community and even having regard to the factors that operate in your favour, I do not consider that a sentence of 12 months or less is appropriate in the circumstances that I have found. 

60This case involves an offence of penetration without consent that I have found is relatively serious.  The court must denounce such criminal behaviour.

61On the other hand, I do not consider that imposing a sentence of between 12 and 24 months without imposing a non-parole period is appropriate in all the circumstances, nor do I consider that a sentence of imprisonment over two years would be a just sentence in all the circumstances. 

62This case is an outlier and cannot be seen as a precedent. 

63

On the charge of rape you are convicted and sentenced to 20 months imprisonment.  Taking into account all relevant factors, I direct that you serve

10 months before becoming eligible for parole. 

HER HONOUR:  Yes, just take a seat.  Are there any other matters to be noted? 

MR CRONIN:  No, Your Honour. 

HER HONOUR:  All right, thank you.  Yes, Mr Henshaw can be taken out.  Yes, could I thank everyone for their assistance in this most difficult case and also for the way that you have conducted yourself, madam, in a very difficult situation.  I might see if my staff are able to attain some assistance for you.  Yes, thank you.  Adjourn the court sine die. 

MR PLUMMER:  If Your Honour pleases. 

- - -