Director of Public Prosecutions v Henson (a Pseudonym)
[2024] VCC 52
•6 February 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EDDIE HENSON (A Pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 December 2023 |
| DATE OF SENTENCE: | 6 February 2024 |
| CASE MAY BE CITED AS: | DPP v Henson (A Pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2024] VCC 52 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Charges of indecent assault, carnal knowledge of a girl under 16 and carnal knowledge of a girl under between 10 and 16 – plea of guilty after accepting sentence indication – sentenced as a serious sex offender – low risk of re-offending – Verdins principle 5 engaged – hardship
Legislation Cited: Sentencing Act 1991 (Vic) s 5(1)
Cases Cited:Worboyes v R [2021] VSCA 169; R v Verdins (2007) 1 VR 39
Sentence: Total effective sentence of 22 months imprisonment. Non-parole period of 11 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Fallar | Office of Public Prosecutions |
| For the Accused | Mr P. Teo | Tyler Tipping & Woods |
HIS HONOUR:
Introduction
1Eddie Henson[1], I will sentence you to a total effective sentence of 22 months' imprisonment and will set a non-parole period of 11 months' imprisonment.
[1]A Pseudonym.
2You pleaded guilty to six charges of indecent assault, a charge of carnal knowledge of a girl under 16 and a charge of carnal knowledge of a girl between 10 and 16. You entered those pleas after accepting my sentence indication of a total effective sentence of 24 months' imprisonment with a non-parole period of 12 months' imprisonment.
3The circumstances of your offending are set out in the document 'Summary of prosecution opening for trial', which is Exhibit A.
Circumstances
4The two complainants are sisters of your then wife, Karen Millhouse[2]. When your offending occurred one victim, Ann Treloar[3], was aged between eight and 10. She is now 60. The other victim, Gretta Harvey[4], was aged between eight and 11. She is now 58. You were aged between 19 and 24. You are now 72.
[2]A Pseudonym.
[3]A Pseudonym.
[4]A Pseudonym.
Treloar
5On an occasion, between 1 January 1971 and 18 November 1973, Ms Treloar was at your home in Werribee[5]. She was upset and sitting on the floor of the lounge room. You cuddled her. She then laid on her back on a rug. You pulled her pants and underwear down and told her to open her legs and raise her knees to her chest, which she did. You then licked her vagina, which she hated but was scared. These circumstances constitute Charge 1, a charge of indecent assault.
[5]A Pseudonym.
6You then inserted a finger into her vagina and repeatedly pushed it in and out. These actions caused her pain and constitute Charge 2, a charge of indecent assault.
7Then you exposed your penis and rubbed it up and down her vagina, having said it was not going to hurt and it was normal. This constitutes Charge 3, a charge of indecent assault.
8About two days later, Ms Treloar partly complained to her mother but did not elaborate because she felt her mother did not believe her.
9These are the three charges relating to Ms Treloar. They occurred in the same incident. Exhibit A contains two instances of your indecent behaviour towards Ms Treloar when she was about 11 and 12. You have not been charged with an offence relating to either instance.
Harvey
10Between 14 September 1972 and 14 September 1974, Gretta Harvey was aged between eight and nine. On an occasion, she visited your home in Werribee. She was seated on your lap as you sat in an armchair. You put a hand under her dress and touched her vagina under and over her clothing. This constitutes Charge 4, a charge of indecent assault. This charge is described as a course of conduct charge because this behaviour continued regularly for two years while you lived at that address in Werribee.
11The next two charges are course of conduct charges also. The first, Charge 5, is a charge of indecent assault. Between 14 September 1973 and 14 September 1975, when Ms Harvey was between nine and 10, she was at your home. You laid her on a couch, removed her underpants, exposed your penis and licked her vagina.
12On the same occasion, and also a course of conduct, you partly inserted your penis into her vagina. She was very uncomfortable as you pushed your penis into her vagina with partial penetration. Because of the age of Ms Harvey, Charge 6 relates to this course of conduct when she was nine and Charge 7 when she was 10. They were a course of conduct because these same acts were repeated on numerous occasions, almost always on the couch but twice in your bedroom.
13Once between 14 September 1974 and 14 September 1975, when Ms Harvey was 10, you drove her to a secluded place and made her hold your penis and masturbate you. This is an uncharged act. But on other occasions, you regularly drove her to the same place and licked her vagina. You then partly inserted your penis into her vagina. Again, this is the subject of a course of conduct charge, Charge 8, being a charge of indecent assault.
14Your offending against Ms Harvey occurred over three years. It ended when you and your wife moved from Werribee to Point Cook[6]. In 1975 or 1976, you and Ms Millhouse separated. The victims have not seen you since then.
[6]A Pseudonym.
15In 2014, Ms Harvey wrote to you anonymously. Between 2014 and 2020, she sent the same letter to you six to eight times. In August 2020, the police received a copy of the letter and started their investigation.
16Despite what you said in a pretext phone call in October 2020, it was not until 7 June 2021, you were arrested. You admitted forms of sexual misbehaviour with both victims but in relation to the allegations forming these charges, you said the victims were lying.
17Following your arrest, you were bailed and have been on bail ever since.
Criminal history
18On 30 May 1968, you were found guilty of three dishonesty offences and the charges were adjourned to a date to be fixed not exceeding 52 weeks. Given the nature of the charges and the disposition, they are irrelevant to the sentencing of you on the present charges.
Victim impact statement
Treloar
19On 11 December 2023, Ms Treloar made an impact statement. After all these years, she still struggles to talk about what happened and in doing so she feels anxious, overwhelmed, weak and vulnerable.
20Once she told her mother what you did to her and was told she was making it up. She became isolated, hating both you and her mother. Three or four times she cut her arms and wrists.
21When younger, she avoided males, preferring the company of females as they were 'kinder, gentler, and more trusting'. She has taken anti-depressant medicine for most of her life. She struggles to form relationships with males. She is very protective of her daughter and granddaughters. Remembering these matters has adversely affected her relationship with her husband and the performance of her employment.
Harvey
22Gretta Harvey made an impact statement on 10 December 2023. Her abiding memory of your offending is the fear she experienced. She blames you and her sister, Karen, for the way you treated her and your behaviour with others. She has no relationship with her sister. She connects an overdose with sleeping tablets with your offending. This occurred when she was 12.
23In her 30s, she disclosed what happened to her mother, whose reaction was unhelpful:
‘…this was an awful and uncomfortable experience and I remember feeling as though the subject was taboo and not up for discussion therefore this was the only time we spoke about it, there was no support from her.’
24She spoke to no one else. She finds it extremely difficult talking about what happened for it makes her feel sick, embarrassed and angry. She was very protective of her daughter. Last year, her daughter was touched on the bottom by an elderly male. It left her daughter upset and for months afterwards, Ms Harvey was anxious, angry and remembering what you did to her. Only recently has she allowed her husband and daughter to know about your abuse of her. Previously, it was too painful to disclose. Although receiving regular psychological treatment, she does not talk about your abuse of her through shame and embarrassment.
25The experience of the courts is the long-lasting effect of child sexual abuse. This is the case with Ms Harvey. She ends her statement with these words:
‘[Eddie Henson] ruined my childhood and he continues to negatively impact my life 50 years later.’
Personal
26You are now 72. You have a sister but no relationship with her. Both your parents are dead. You left home at 20. You have lived with your present partner for 43 years. You told the psychologist of the three instances of you being sexually abused by males with the last occurring when you were 15 or 16.
27You found schooling difficult as you were a slow learner. Your secondary education ended at 14. Since school, you were continuously employed in a variety of jobs but mostly as a truck driver. You retired at 65.
28You have a son and daughter from your first significant relationship. You have not seen these children for many years. You no longer believe you are the father of these children. You have no children from your current relationship. There are two stepsons, aged in their 50s, to whom you are close.
Psychologist
29Sandra Cokorilo is a psychologist. On 2 May 2023, she interviewed you at the request of your solicitors[7].
[7]Report dated 12 July 2023.
30Ms Cokorilo administered certain psychological tests. She detected nothing abnormal on any of the tests. However, she saw significance in your childhood sexual abuse. Nevertheless, she did not diagnose you as suffering from any recognised psychological disorder.
31She assessed your risk of sexual re-offending as low without any formal interventions. 'Low' is the least of three categories with the other two being medium and high. Despite expressing remorse for your offending, Ms Cokorilo considered you lacked insight into the full extent of the potential impact of your offending on your victims. She recommended counselling from a psychologist with forensic experience in treating sex offenders.
Discussion
Purposes
32Section 5(1) of the Sentencing Act 1991 ('the Sentencing Act') sets out the purposes for which sentences may be imposed:
(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character;
(c) to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;
(d) to manifest the denunciation of the type of conduct the offender engaged in; and,
(e) to protect the community from the offender.
33Each of those sentencing purposes is relevant to your sentencing.
Serious sex offender
34Since I will sentence you to imprisonment on Charges 1 and 2, on the other charges you are to be sentenced as a 'serious sex offender'. The effect of this is to raise the following:
(a) of the purposes of sentencing which I spoke about earlier, I must place the protection of the community as the principal purpose;
(b) the sentences imposed should be served cumulatively upon each other unless I direct otherwise;
(c) I may impose a disproportionate sentence. However, such a measure was neither sought by the prosecution nor, in fact, warranted in your case.
35Notwithstanding the principal purpose under the serious sex offender provision, I do not consider this purpose and that of specific deterrence figure significantly in your sentencing. Except for whatever underlay the sentencing in 1997, you have not committed offences for many years. For at least the last 26 years you have led a normal life. Seen from the perspective of rehabilitation you have rehabilitated yourself.
36You may have lacked insight into the potential effect of your offending when interviewed by Ms Cokorilo but you have had the benefit of knowing the contents of the victim impact statements. They show the profound and continuing effect your offending has had on the victims. For someone who has never been sentenced to imprisonment, a significant sentence of imprisonment will be a powerful deterrent to further such offending if ever you were in a position to do so. Overall, I consider the risk of you re-offending in the same or similar manner against children and the need to protect the community from you as slight. In the present case, the principal purpose of sentencing has little relevance.
37Of the remaining punitive purposes, significant weight must be given to deterring other persons from committing these offences against children. Through its sentencing of offenders, courts must strive to ensure the sexual safety of children by the imposition of appropriate sentences which also reflect the denunciation of such conduct.
Maximum penalties
38The maximum penalties for the offences are:
(a) indecent assault – 5 years' imprisonment;
(b) carnal knowledge of a girl under 10 – 20 years' imprisonment;
(c) carnal knowledge of a girl between 10 and 16 – 10 years' imprisonment.
Guilty plea
39Your guilty pleas followed acceptance of my sentence indication. There had been a committal hearing in the Magistrates' Court where the victims were examined. In terms of timing, your pleas came after the mid-point in a criminal proceeding which starts with the laying of the charges and ends with the verdict of a jury.
40By pleading guilty, you have taken responsibility for your offending. Contrary to your counsel's submission, I cannot say whether the prosecution’s case was 'arguably weak'. I cannot assess the strength of each victim as a witness. Judging from the content of their impact statements, they might well have proven to be strong witnesses. I note the detailed notice of tendency evidence. If admitted, then there is a body of strong evidence to support findings of guilt.
41Your guilty pleas have the practical effect of assisting the criminal justice system. It creates room for those proceedings which genuinely require a jury trial. It relieves witnesses of the burden of giving evidence in this Court. This applies to the victims even though they gave evidence at the committal hearing. There is a difference between giving evidence before a magistrate and before a jury. The former is a preliminary hearing, the latter is the determination of guilt or innocence.
42Even though the problems caused by the virus to the criminal justice system have greatly lessened, they have not disappeared. The sense of crisis expressed by the Court in Worboyes v R[8] has almost disappeared. On 5 May 2023, the World Health Authority declared the virus was no longer a public health emergency. Later, in 2023, the Chief Judge of this Court announced the backlog of cases created by the pandemic had been overcome. Nevertheless, criminal jury trials are still made difficult by the effects of the virus, affecting witnesses, jurors and other participants. Accordingly, even now, a guilty plea deserves a greater discount on sentence than would be the case in normal times.
[8][2021] VSCA 169.
43Overall, your guilty pleas deserve a significant discount on the sentences which would have been imposed in their absence.
Verdins
44You rely upon principles 5 and 6 stated in the case of R v Verdins[9]: the existence of a mental impairment may mean a sentence of imprisonment may weigh more heavily on you than a person in normal health; and a serious risk of imprisonment will have a significant adverse effect on your mental health. The support for your reliance comes from this passage of Ms Cokorilo’s report[10]:
…it is likely that his mental health would deteriorate in a custodial setting where he would be considered a vulnerable individual due to his advanced age and lack of prior custodial experience.
[9](2007) 1 VR 398.
[10]At [71].
45She is referring to your depression, which has been treated by medicines for many years. I accept her view. Principle 5 applies to moderate the sentence I would otherwise have imposed. Your experience of imprisonment will be harder because of the deterioration of your depression.
46On the other hand, that passage is insufficiently strong to engage principle 6, which requires a serious risk of a significant adverse reaction.
Hardship
47You have been married for 43 years. Your wife is now 76. You and she live alone. You care for her because she suffers from diabetes, anxiety and panic attacks. When she suffers a panic attack, you give her prescribed medicine. Your wife uses a walker. Even with it she cannot walk far for she runs out of breath. She stands for only short periods. She has fallen and the fear of falling raises her level of anxiety. She is housebound, leaving only to attend medical appointments. You take her to these appointments since she cannot drive. You carry out most of the usual household duties.
48Although your counsel submitted these matters did not amount to exceptional hardship to your wife if you are imprisoned, you will worry about her situation given her significant disabilities and her reliance upon you. Your sentencing was adjourned to enable you to make arrangements for the care of your wife in your absence.
49Mr Teo has now told me your wife will not address the reality of you being sentenced to immediate imprisonment. What will happen to her will be a matter of great concern to you until her situation is resolved. This is complicated by the fact that the residence which you live is a rented residence and the premise is up for sale. The effect of her ability to continue to reside in that residence is really a matter of law and an application of the provisions of the Residential Tenancies Act; a matter which no doubt your lawyers will advise you about, if asked to do so. So, there are two matters playing on your mind at the moment in relation to your wife and for the time being they will be, as I say, matters of great concern to you.
Disposition
50For the purposes of the sentencing indication, your counsel submitted a community correction order or that order combined with a term of imprisonment was appropriate. I rejected that submission during that process. Your offending was serious and, in relation to Ms Harvey, conducted over three years. It has had a profound effect on her and on Ms Treloar. The main reason you have not received a much longer sentence of imprisonment is the fact you have rehabilitated yourself and represent very little risk of re‑offending in the same or a somewhat similar manner. The requirements of just punishment, general deterrence and denunciation require sentences of immediate imprisonment.
Sentence
51On Charge 1, a charge of indecent assault, I sentence you to 3 months' imprisonment.
52On Charge 2, a charge of indecent assault, I sentence you to 6 months' imprisonment.
53On Charge 3, a charge of indecent assault, I sentence you to 3 months' imprisonment.
54On Charge 4, a charge of indecent assault, which is a course of conduct charge, I sentence you to 12 months’ imprisonment.
55On Charge 5, a charge of indecent assault, which is also a course of conduct charge, I sentence you to 14 months' imprisonment.
56On Charge 6, a charge of carnal knowledge of a girl under 10, which is also a course of conduct charge, I sentence you to 16 months' imprisonment.
57On Charge 7, a charge of carnal knowledge of a child between 10 and 16, a course of conduct charge, I sentence you to 14 months' imprisonment.
58On Charge 8, a charge of indecent assault, another course of conduct charge, I sentence you to 12 months' imprisonment.
59The sentence on Charge 6 is the base sentence. One month of the sentence on Charge 2 and one month of the sentence on Charge 5, 2 months of the sentences on Charges 7 and 8 are to be served cumulatively upon themselves and the base sentence. The remaining sentences of imprisonment are to be served concurrently with the other sentences. The total effective sentence is 22 months' imprisonment. I will set a non-parole period of 11 months' imprisonment. There is no pre-sentence detention.
S 6AAA
60If you had not pleaded guilty to these charges but had been found guilty after a trial, I would have sentenced you to a total effective sentence of 36 months' imprisonment and set a non-parole period of 18 months' imprisonment.
Sex Offenders Registration Act 2004
61For the purposes of the Sex Offenders Registration Act 2004, Charges 2, 6 and 7 are class 1 offences while Charges 1,3, 4,5 and 8 are class 2 offences. The combination of those classes means you are required to report for the rest of your life.
Serious sex offender declaration
62For Charges 3 to 8, I have sentenced you as a serious sex offender and direct that that fact is entered into the records of the Court.
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