Director of Public Prosecutions v Hepburn (a pseudonym)

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT BALLARAT

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

v

CAMDEN HEPBURN [a pseudonym]

---

JUDGE:	HER HONOUR JUDGE PULLEN
WHERE HELD:	Ballarat
DATE OF HEARING:	16 September 2015
DATE OF SENTENCE:	18 September 2015
CASE MAY BE CITED AS:	DPP v Hepburn (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2015] VCC 1323

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr A. Moore	Office of Public Prosecutions
For the Accused	Mr S. Kenny	Mike Wardell Solicitors

To ensure there is no possibility of identification, this sentence has been anonymised
by the adoption of pseudonyms in place of names of the accused and victims

HER HONOUR:

Camden Hepburn, you have pleaded guilty to three charges of indecent assault. The maximum penalty applicable for each offence is five years’ imprisonment.

These crimes arise from events which took place between yourself and the complainant, Meg Baldwin, between 18 October 1981 and 17 October 1985.

It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes, to simply say the facts in this case are most serious and disturbing. Your behaviour was obviously unacceptable.

I turn to a brief summary of your offending.

The complainant, Meg Baldwin, was born on 18 October 1972. You are her uncle, born on 4 October 1964, and are eight years older than Meg Baldwin. You were approximately 15 years of age at the time you commenced your offending against Meg Baldwin.

Meg Baldwin grew up on a rural property in Ross Creek, approximately one kilometre from her grandparents’ (your parents) home. Meg Baldwin visited them at least once a week and would regularly stay overnight.

On Friday, 13 June 2014, Meg Baldwin attended Ballarat Police Station and reported she had been sexually abused by you between the ages of 7 and 13 years. At that time, you were 15 to 21 years of age. Meg Baldwin did not tell anyone of the abuse at the time. She first told someone when she was at secondary school. At that time she did not tell her friends who the offender was, but did tell Isabelle Christopherson that it was her uncle. Isabelle Christopherson replied with “That’s really wrong”. The complainant then realised what you were doing was wrong.

Meg Baldwin hid your offending from her family until 2005, prior to her move to Darwin. Meg Baldwin then told her mother. Over the years, Meg Baldwin had written a series of letters to you but had not sent them, in which she wrote her feelings about your offending.

On 13 July 2014, Meg Baldwin re-attended at the police station with those letters and journal entries and provided them to police. A statement was taken from her on 24 July 2014.

The events the subject of the charges before me occurred over a period of approximately four years. One of the charges, Charge 3, is a representative charge of two occasions. The three charges occurred against a background of uncharged acts compromising similar unspecified misconduct. The prosecution relies on this other misconduct as contextual background to the offences that are charged. You are, of course, not being sentenced for those other acts.

Meg Baldwin’s earliest memory of your ‘sexual behaviour' with her was of you involving her in a sexualised game when she was 7 or 8 years of age. She was playing with you in a cubby at her grandparents’ property. You pointed to Meg Baldwin’s body and asked her what her various parts were called. During that exercise you pointed to her vagina and asked what it was called. Meg Baldwin felt embarrassed, as she did not know what to call it.

When Meg Baldwin was 7 or 8, when you, her brother and her sister were walking in the bush opposite her grandmother’s property in Ross Creek, Meg Baldwin became separated from her brother and sister and was alone with you. You lay down on your back and had Meg Baldwin lie on top of you. You were both clothed. You started rubbing up against Meg Baldwin, simulating having sex with her. You told Meg Baldwin it was their secret and she would get into trouble if her parents found out. She believed you.

On a specific occasion referrable to Charge 1, when Meg Baldwin was swimming in the dam on the family property at Ross Creek with her brother, sister and yourself, you were lying down on your back with your head above the water at the shallow end of the dam. You had Meg Baldwin sit on your pelvic area by having her straddle you. You removed your penis from your pants and rubbed it on Meg Baldwin’s vagina on the outside of her underpants. At that time Meg Baldwin was 8 to 9 years of age and you 16 to 17 years of age. You told her that is what parents did to have babies and it had to remain a secret or she would get into trouble.

Turning to another uncharged act, when Meg Baldwin was between 10 and 12 years of age, she was sleeping at her grandmother’s house in Ross Creek. The following morning she walked past your bedroom and you called her in to say good morning to you. You asked her to get into bed with you and she did. You had her hold your penis and gave her instructions to touch the end of it. Meg Baldwin did not remember if you ejaculated or not.

Turning to Charge 2, again a specific incident, on another occasion Meg Baldwin was staying overnight at her grandmother’s house and was in bed with you. You licked your fingers and put your hand in her underpants and played with Meg Baldwin’s vagina. You then partially inserted your finger into her vagina, at which time Meg Baldwin said “Ouch”, and you stopped.

Turning to Charge 3, a representative charge, on another occasion when between 10 and 12 years of age, Meg Baldwin was staying at her grandmother’s home and, again, was in your bed with you attempting to force your fingers inside her vagina. This caused Meg Baldwin to bleed, leaving blood on her underpants. The second occasion relied upon referrable to Charge 3, involved an incident when Meg Baldwin was between 12 and 13 years of age and she was staying at her grandmother’s house. On that occasion you came into her bedroom and got into bed with her. You put your hand in her underpants, played with her vagina and attempted to push your finger into her vagina.

Charge 3, as I have said, is a representative charge and, in that regard, the principles stated in R v SBL[1] and considered in DPP v EB[2] and DP v The Queen[3] are applicable.
[1] [1999] 1 VR 706
[2] (2008) 186 A Crim R 314
[3] [2011] VSCA 1

After that incident, on that same occasion it would seem but certainly after that incident, you got on top of Meg Baldwin, attempted to push your penis into her vagina causing her extreme pain, which caused her to make a lot of noise and which made you stop. This is also an uncharged act.

On 19 November 2014 you were arrested at your home address, taken to Ballarat Police Station and interviewed. You admitted you had touched Meg Baldwin when you were about 17 years of age. You said sexual behaviour towards Meg Baldwin may have occurred and it had played on your mind over the years. You remember the first occasion when you tried to put your finger into her vagina and also recalled rubbing against her vagina. I discussed with your counsel, Mr Kenny, your responses in the record of interview in their totality and I accept, in general, you made admissions to your offending.

You do not have any prior court appearance nor anything subsequent or pending. At sentence, at age of 50, you come to court as a person of otherwise good character.

The victim of your offending has suffered considerably and I shall return to pass some remarks on that subject shortly.

There are a number of aggravating features of your offending, in particular, the breach of trust involved, not only the breach of trust of Meg Baldwin but also her parents and your parents. Although I do note, as your counsel submitted, Meg Baldwin was not under your ‘care and supervision’. I also note you told her not to tell anyone and to keep it a secret or she would get into trouble.

As has been pointed out by your counsel, there are some mitigating factors. You have pleaded guilty to these charges and are entitled to have that fact taken into account in your favour, and I do so. The community has, by your pleas of guilty, been spared the time and cost of a trial and witnesses, in particular Meg Baldwin, have not been required to give evidence upon your trial. This matter resolved prior to the contested committal commencing. You were charged with these offences in November 2014. The matter has therefore proceeded quickly through the court system.

The fact of your pleas of guilty, and the timing of them are a relevant sentencing consideration in mitigation of your sentence.

In the circumstances, I accept your plea of guilty indicates remorse for your offending. I also note you have expressed your remorse to others since being questioned by police, as noted in the various references tendered on your plea. Your expressions of remorse for your offending upon Meg Baldwin were discussed during your plea hearing.

Your counsel, Mr Kenny, provided a helpful written outline of submissions on your plea hearing and addressed those during the course of your plea hearing (Exhibit 1) and chronology. He provided details of your family history. You are currently 50 years of age and the youngest of eight children. You described your family life during childhood as stable and positive. You have been a religious person throughout your life, including at sentence.

You have lived most of your life in the Ballarat area, although between the ages of 5 and 11 you lived with some of your family on a mission in Western Australia. Whilst at the mission, you instructed you were sexually abused on about four or five occasions, although did not make any complaint to police about that conduct. Reference was made to this in a report from Stephen Gault, to which I shall later refer. You had recently sought some limited counselling in that regard and also, as I understood from Mr Kenny, for your offending before me.

Your family returned to Ballarat when you were 11 and you lived at a rural property at Ross Creek. Meg Baldwin’s family lived nearby and, as I have said previously, Meg Baldwin was a regular visitor at your home.

You met your wife when you were 25 years of age, marrying shortly after meeting. There are three children of your marriage, aged 20, 19 and 16, all of whom live in the family home. Your eldest son and wife were present in court to support you at your plea hearing. Your wife is employed as a teacher and shares your faith.

You attended local primary schools and then completed Year 10 at College in Ballarat. You completed Year 12 in a building course in Ballarat.

After you left school you commenced a plumbing apprenticeship and worked with Richard Taylor until 1996. There was a reference before me from Mr Taylor.

Since that time you have worked for yourself, trading under your own name. Since your arrest, due to your mental health, I was told you had been unable to maintain that business apart from a few hours. You had also been prescribed medication for anxiety and depression. I should refer to a relevant report in due course.

You continued to attend the Church of Christ in Mount Clear every Sunday and bible study groups regularly. You had also in the past allowed your property to be used for youth camps. As a result of these charges you would, however, stay away from the property if children were present.

In the latter part of 2014, you engaged in treatment with a psychologist at Ballart Health Services and with a private counsellor, Michael Skewes. You instructed this was to assist with your anxiety relating to these allegations.

Your counsel relied on a number of references and also a psychological report of Stephen Gault, dated 30 August 2015.

Mr Gault interviewed you on 28 August 2015. He outlined your background and history, much of which I was told by Mr Kenny, and referred to within his written submissions. You described a good relationship with both your parents. Your mother is now 95 years of age.

You said you had enjoyed school, however were not particularly academically gifted. You did not have any disciplinary issues at school and were never suspended or expelled. Your main interest at school was sport.

After completing your apprenticeship, for a period of time you worked until your early 30s. In 1996 you then spent approximately 18 months at home whilst your first two children were very young, then starting your own business.

You told Mr Gault you and your wife had a good marriage and a good relationship with the children. Your wife, you said, was supportive of you and had remained supportive of you in your current legal situation. You provided brief details in relation to you being sexually abused at about 8 years of age. You denied sexual attraction to children.

You described that from the age of 16, and of your own volition, you began to attend church regularly and now attended church on a weekly basis. You led youth groups at the church and organised bible study and social events.

You did not have issues with illicit substance use or excessive alcohol consumption, although your alcohol consumption increased at the time these allegations became known to you, it would seem, following a phone call you received approximately 15 years ago. Your excessive consumption of alcohol continued for about five to six years, until you attended a detoxification clinic at the age of 42. You were admitted to the clinic on three occasions, and after that third admission ceased drinking alcohol. You had thereafter remained largely abstinent. Since your arrest by police you described drinking a glass of wine “Sometimes when you need to calm down”.

You had never been diagnosed with any mental illness and had never been admitted to a psychiatric hospital.

Since being charged, you told Mr Gault your general practitioner had diagnosed you with stress. You said following police involvement you did not cope well, had trouble concentrating, lost weight and did not want to work. You found working difficult and said you worked only approximately 30 hours in total over the past 12 months.

Since your arrest you had attended a private counsellor on two occasions, also Ballarat Health Services, where you were diagnosed with anxiety. You were on antidepressant medication and also taking Valium when needed.

Reference was made to you suffering atrial fibrillation in the past and most recently your hospitalisation on 11 September 2015, which you instructed Mr Kenny was for the same condition (Exhibit 5).

When asked by Mr Gault why you offended in the way you did, the only answer you could come up with was “stupid curiosity”.

You described feeling mortified by your offending, as it had affected Meg Baldwin’s life. Of concern, however to Mr Gault you denied some of Meg Baldwin’s allegations (paras 35-37).

In the opinion of Mr Gault you did not suffer, and did not appear to have suffered at any stage in your life, with a serious mental illness. Prior to your arrest you had a history consistent with Social Anxiety Disorder and Alcohol Use Disorder (now in remission). Subsequent to your arrest you suffered symptoms meeting a criteria for a diagnosis of Major Depressive Disorder with anxious distress. Your condition had stabilised with the assistance of antidepressant medication.

There was no indication that mental illness, serious or otherwise, played any part in your offending against Meg Baldwin.

I note in that regard, your counsel Mr Kenny, was not relying upon any of the principles in R v Verdins & Ors[4]. That was, in my opinion, an appropriate concession based on the material before me.
[4] (2007) 16 VR 269

Whilst Verdins principles are not enlivened, as I discussed with Mr Kenny, I can and do take into account as part of general sentencing principles your various diagnoses and past history of atrial fibrillation, and that imprisonment for you will be more difficult than a more physically/mentally capable person or prisoner. Such is relevant in mitigation of your sentence.

Mr Gault conducted an assessment of you in an attempt to determine the likelihood of you re-offending in a sexual way. He used the Sexual Violence Risk – 20 Assessment Tool (“SVR-20”) and concluded from the results you did not present as a high risk of re-offending.

In his opinion there was no information available to him that you had any ongoing paedophilic sexual orientation or interest, although he noted difficulty in assessing that definitively. Principally, for that conclusion Mr Gault relied upon the absence of further reports of you having offended against minors.

Mr Gault observed there were some aspects of your reported sexual history he found somewhat unusual, which in his opinion, was not consistent with your sexual offending against Meg Baldwin (paras 51-52). I discussed this with Mr Kenny and the transcript will reveal that discussion.

In the opinion of Mr Gault, you did not have an antisocial personality.

There are a number of references before me, including one from Dr David Cruickshank, dated 12 August 2015. You had been attending his medical practice since 1991.

The medical practice records indicate that in September 2014 you were prescribed Valium and Zoloft for anxiety and depression. Since that time you had generally seen Dr Cruickshank, previously other practitioners at the clinic. You had remained visibly distressed and appeared to not be coping throughout his contact with you.

There was also a reference from your wife, dated 17 August 2015. She remained supportive of you. The offences before the court were out of character with the person she knew. She described you as a person of integrity, respected by family and friends. She described you as being remorseful. Arrangements were made to have professional help to assist you. You had become isolated at home and not interacting with family in a meaningful way.

You had been unable to attend plumbing jobs as a result of your anxiety over this offending, which has caused major financial hardship to the family. She described you as a loving, respectful and faithful husband. When you were first arrested in November 2014 you were in a state of distress, requiring her to take time off work to care for you.

There was a reference from Richard Taylor, dated 14 August 2015. He employed you when you were an apprentice. Your employment with his firm continued until Christmas of 1996 when you left to look after your children. He had never received a complaint from any client regarding your behaviour or tradesmanship. If you wanted to return as an employee, you would be able to start with him immediately. Over the years he said you had become like one of his family. When your children went to school and you recommenced plumbing work, he immediately subcontracted you again. That arrangement, as I understood it, continued to the present.

A few months ago, however, he was not able to make contact with you and sought you out. He listened in disbelief at the description of your offending. He said you were visibly upset when explaining to him your offending. Whilst Mr Taylor did not know the details of what had occurred, he had never seen anyone as remorseful as you for placing your family in such a stressful situation. He referred to you having stopped attending church. You are always welcome in his home.

There was a reference from Danielle Reeve dated 18 August 2015. She had known you for approximately eight and a half years and was part of your church community at Mount Clear. She was aware of these sexual charges. They were out of character for you. She described you as remorseful.

You were deeply remorseful for your offending and the harm you caused to the victim. Since your arrest in November 2014, she described you as being visibly distressed showing signs of anxiety, depression and only being able to work a total of approximately four days. Ms Reeve was also aware of your atrial fibrillation and past hospitalisation for it. She was aware you had sought professional psychiatric/psychological support and were on antidepressants and Valium. She described you as a long-time member of the Mount Clear church community.

There was a reference from Belinda Farrow dated 20 August 2015. She was aware of the charges before the court. She had known you for approximately 34 years, having first met in youth group at Pleasant Street Baptist Church. Her family currently attended at Mount Clear Church of Christ. She described you as like a brother to her. Over the years she had known you to be a man of integrity, a loving husband and father to your children. You were a respected plumber. You had been involved in youth work at the church and attended working bees. You had also made your home available for youth camps and church social gatherings. Since these charges were laid she had observed your health decline. You were remorseful for what had happened.

There was a reference from Andrew Battistella, Senior Pastor, Mount Clear Church of Christ, dated 23 August 2015. He had known you for approximately four and a half years as part of the church community. He described you as an active member of the church community, attending church and church working bees frequently. He was aware of the charges before the court. He described you as a man of integrity, honesty, sensible, conscientious, hardworking and caring.

You had discussed your offending with Mr Battistella and had shown great remorse for it. He was aware you had been diagnosed with anxiety and had seen a psychologist, psychiatrist and private counsellor. He was aware you have not been able to return to work as a result of these charges and its impact on your reputation.

There was a reference from your sister, dated 15 August 2015. Until the recent charges she would see you on a regular basis. She had discussed the charges with you but not the details of them. She said you have shown great remorse and were sorry for your offending. She noted you appeared depressed.

Over the last few months you had trouble functioning mentally and lost your self-esteem and were unmotivated. You were on antidepressant medication. Your anxiety had increased. She also referred to you having a heart problem. She described your involvement with the Mount Clear Church of Christ. Recently you had not been able to attend due to your embarrassment and loss of self-esteem. She described you as a devoted family man.

There was a reference from Ross Bourdon dated 20 August 2015. He is a Minister with the Churches of Christ in Victoria, a position he had held for 37 years. Between 2005 and 2012 he was the Senior Minister at Mount Clear Church of Christ Ballarat. He described you as a warm, engaging person, honest and with integrity. He described you as being genuinely sorry for your offending. He had known you for approximately ten years through the church. He had discussed the charges with you and you have expressed shame and grief for them. You were extremely remorseful for what had occurred.

There was also a reference from Maggie Bourdon dated 20 August 2015, the wife of Ross Bourdon. Her home in Ballarat was near your home. Their children were friends of your children. They had complete trust in you and the children had many sleepovers, campouts and visits to your home. She knew you had sought psychological counselling, psychiatric assessment and a prayer ministry. She described you as a trusted and respected person, both in church and the community. You were a tradesman of integrity and honesty. You had a sense of shame and deep remorse for your offending. These charges had also deeply affected your family in an adverse way.

Turning specifically to Mr Kenny’s sentencing submissions, he appropriately acknowledged that sexual offending against children was regarded very seriously by the courts, and that principles of general and specific deterrence, denunciation and just punishment must loom large in the sentencing process. He urged, however, your offending involved a single complainant, that your offending was not unusually depraved or degrading and did not include any physical violence (beyond that involved in the offending) or threats of recrimination. I am conscious of those matters.

Mr Kenny acknowledged relevant to Charge 3, a representative charge, the principles in SBL applied. I am also aware this charge relates to two incidents and not a greater number.

Mr Kenny conceded the other ‘uncharged’ acts could be taken into account when assessing the context, nature, degree and significance of the offences before me in Charges 1, 2 and 3.

Mr Kenny submitted you admitted your offending when spoken to by police on 19 November 2014, and I have previously referred to my discussion with him regarding your record of interview. He submitted you pleaded guilty without any witnesses being required to be cross-examined. I have also previously referred to the importance and relevance of your plea of guilty and timing of it.

Mr Kenny also relied upon your otherwise good character and I am very conscious of that. Again, I have referred previously to your lack of prior or subsequent convictions, as I have said.

Turning to your prospects of rehabilitation, Mr Kenny submitted you had been assessed by Stephen Gault, as not presenting a high risk of re-offending and that, in Mr Gault’s opinion, you did not need treatment, that if your sexual behaviour could remain in conformity with the principles of your faith, you were not likely to re-offend. You had expressed remorse to Mr Gault for your offending.

I am satisfied on all the material before me your rehabilitation prospects are very good. Of course, in sentencing I must seek to maximise your chances of rehabilitation.

Mr Kenny referred to the delay between this offending and being sentenced. Mr Kenny submitted, and I accept, that in the 32 years since this offending you have not come to the attention of the police and have demonstrated your rehabilitation. Delay is also a relevant consideration. I however referred Mr Kenny to R v Kovac[5] and a statement by Neave JA relevant to delay involving sexual offending. This was read into the transcript during discussions with Mr Kenny.
[5] (2006) VSCA 229

I also note your age at the time of this offending was between 17 and 21.

In that regard I am conscious of the authorities referrable to sentencing an adult who was a child/young offender at the time of the offending, see Nutter[6], also Better[7]. I also note you may have, if sentenced at the time of your offending (or at least part of it), had the option of Youth Justice Detention.
[6] CCA Vic 8/11/95
[7] [2003] VSCA 71 paras 5 & 12

Mr Kenny submitted a Community Correction Order, in all the circumstances, would be the appropriate disposition. He relied upon Boulton v The Queen[8]. I discussed that decision and others with him, which have subsequently considered Boulton, see DPP v Maxfield[9], Alam v The Queen[10] and Hutchinson v The Queen[11]. This list is by no means exhaustive. I also discussed Boulton with Mr Kenny, as the transcript will reveal. The court is urged to ‘rethink’ the conventional wisdom about whether prison is really the only option.
[8] [2014] VSCA 342
[9] [2015] VSCA 95
[10] [2015] VSCA 48
[11] [2015] VSCA 115

As I discussed with Mr Kenny, I did not understand Boulton however to remove the applicability of s5 Sentencing Act 1991, nor did I understand Boulton to mean that previously stated sentencing principles relevant to this type of offending now amounted to nought. Nor did I understand Boulton to remove the instinctive synthesis when sentencing.

It has always been the law that an actual term of imprisonment must always be the last resort of the court, after all other dispositions have been carefully considered, taking into account not only the gravity of the offending but also all matters in mitigation of sentence.

There was a victim impact statement before me from Meg Baldwin (Exhibit B). The statement was read into the transcript by her. The statement is eloquent and it is difficult to do justice to it in these brief sentencing remarks. I have read that statement again mindful of Luciano v R[12]. I am obliged to not take into account aspects of the victim impact statement that are inadmissible, or to put it in positive language, I am obliged to only take into account aspects of the victim impact statement that are admissible. As I discussed with Mr Kenny there are parts of that statement which, in my opinion, are inadmissible and which I disregard.
[12] [2015] VSCA 173

Mr Kenny was going to advise me of any other such material he wished to bring to my attention prior to sentence. I have not received any further submissions from him in that regard.

In Meg Baldwin’s victim impact she statement referred to the substantial emotional impact your offending has had upon her. Your offending had left her confused and frightened. You told her not to tell anyone, putting the responsibility onto her.

She had difficulty maintaining relationships, including intimate relationships.

She suffered depression as a result of your offending. She withdrew from family, was isolated and lonely. Meg Baldwin felt anger triggered by your sexual abuse of her and her anger had also impacted upon her relationships.

Meg Baldwin suffered with anxiety and was anxious around men. Your offending had affected her sexually, also impacting upon her relationships.

Meg Baldwin referred to the breach of trust by your offending and her ongoing difficulty with trust.

Meg Baldwin had attended counselling on and off over the last ten years to try to understand the emotional impact of your sexual abuse of her. Meg Baldwin described the impact of your offending on her relationship with her family members, including her mother.

A number of authorities have also referred to the effects upon a victim of sexual offending, including DPP v Toomey[13], in which his Honour Justice Vincent also referred to social rehabilitation citing DPP v DJK[14].
[13] (2006) VSCA 90
[14] (2003) VSCA 109, paras 17 & 18

The effects upon a victim are a relevant sentencing consideration (s.5 Sentencing Act 1991). I am conscious however, that I must not allow the effects upon a victim to swamp the sentencing process.

Mr Moore, who appeared on behalf of the prosecution, submitted there were a number of relevant sentencing considerations that needed to be balanced in this case. I agree.

Mr Moore referred to the impact of your offending upon Meg Baldwin. Also that the law recognised the need for general deterrence and denunciation of your offending, that you were sentenced now as an older man having committed this offending when a child/young man. Also you had led a blameless life. These are, of course, just some of the matters I must consider when determining the appropriate sentence.

Mr Moore also referred to the victim’s attitude to disposition and that she was not ‘pushing for him to go to gaol’. The wishes of a victim are one of the matters I consider (s5 Sentencing Act 1991). However, other matters also must be taken into account when considering such wishes (see R v CLP[15], in particular paragraphs 30-32, including reference to R v Skura[16], paragraphs 12-13 and 45-50).
[15] [2008] VSCA 113
[16] [2004] VSCA 53

Mr Moore submitted an immediate term of imprisonment was appropriate but such could be combined with a community correction order to reflect all relevant sentencing considerations.

As well as matters personal to you to which I have referred, including your rehabilitation prospects, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.

The courts have repeatedly referred to the serious nature of offending against children, particularly those in a position of trust in relation to the child.

The courts have a special duty to protect children. They are vulnerable and especially vulnerable to trust. They are immature in their understanding of right or wrong.

A number of authorities have referred to the seriousness of sexual offending against children (see Roosmalen[17], Wayland[18], Parente[19], and Di Nardo[20]). This list is by no means exhaustive.
[17] (1989) 43 A Crim R 358
[18] CCA Vic 14/9/1992
[19] CCA Vic 20/2/1996
[20] (1998) 2 VR 493

There is also a need for specific deterrence when sentencing you. In that regard, I note you do not have any prior or subsequent court appearances. However, your offending occurred on four separate occasions (three charges) over a significant period of time. That is, about over four years as reflected in the charge dates.

I must also consider the question of protection of members of the community from you, and bear in mind the likelihood of your re-offending. I am comforted in that regard by your lack of subsequent offending, and also the conclusion of Mr Gault relevant to your risk of re-offending.

I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.

I arranged to have you assessed for your suitability, or otherwise, for a community correction order and received a report from Sarah Thomas that you are suitable for such an order, if I considered such appropriate.

Having taken into account all matters relevant when sentencing you, I have ultimately determined the appropriate disposition involves a brief period in custody followed by a community correction order.

I propose as part of your sentence following a period in custody you will then be on a community correction order, but I can only do this if you consent to the order being made. I note you were interviewed by Ms Thomas who says you are suitable and you have agreed that the conditions apply. However, I must also ascertain whether or not you consent to such a community correction order being made. I, therefore, need to tell you something about the order and that is what I am doing now.

The order will be for a period of 3 years which will commence after your release from custody. There are a number of core conditions that will apply to this order. You need to listen very carefully because these core conditions apply to everyone, including yourself. This is after your release.

The Core conditions apply to all Community Corrections Orders:

·You must not commit, whether in or outside Victoria, during the period of the order (period of three years), an offence punishable by imprisonment.
·You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the Order.
·You must report to the Community Corrections Centre at Ballarat within two clear days following your release from custody.
·You must notify the Secretary, or his or her nominee, of any change of address or employment within two clear working days after that change.
·You must not leave Victoria, holidays or otherwise, without the permission of the Secretary to the Department of Justice, or his or her nominee.
·You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with that Order.

There are a number of other conditions that will apply to that Order, and these are as follows:

· You have to perform 200 hours of unpaid community work over a period of the first 12 months as directed by the Regional Manager (s.48C).

· You must be under the supervision of a Community Corrections Officer for a period of 36 months.

·You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee (s.48E).

· You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager (s.48D(3)(e)).

· You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager, and I specifically refer to the Sex Offenders Program, if required, (s.48D(3)(f)). The report of Mr Gault has already been provided to Corrections and they may or may not think it is required.

I have not included a specific judicial monitoring condition in your case, nor have I specifically included s.48(i), that I be notified of any breaches as each breach as it occurs. They are not part of the order I make in your case. I might in others, but I have not in yours.

I can only impose a Community Correction Order if you agree to such an Order being imposed. So I need to tell you just a little bit more about that order, over and above what I have already said.

I should advise you that if you contravene or breach that order by committing further offences you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach (s83A(d)).

You can also be re-sentenced for the offences that are before me. One of those options available includes a term of imprisonment (s83A(s)).

So you have got to be extra careful for three years after your release. No committing any further offences that might incur a term of imprisonment, otherwise you are back before the court, back before me and you will be re-sentenced on these three charges that are before me. So you have to be extra careful.

I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections officer, worker if you like, as part of this order, a substantial fine can be imposed (s83A(e) and A(f)).

Now you are aware of all of that?

Do you consent to the order being made in the terms sought, that I have just outlined, with all those conditions attached, bearing in mind the ramifications of any breach of the order in any way, shape or form? That is, the core conditions and/or the other conditions. I am only addressing that order at the moment. Do you want to speak to your counsel about it or do you consent or otherwise?

OFFENDER: I consent, Your Honour.

HER HONOUR: So you consent to that Community Correction Order with all those conditions, the core conditions, the additional conditions and being mindful of what happens if you breach?

OFFENDER: Yes, Your Honour.

HER HONOUR: Did you feel you needed to see him about that?

MR KENNY: No, Your Honour.

HER HONOUR: By virtue of the term of imprisonment I will be imposing on Charges 1 and 2 you will then be sentenced on Charge 3 as a serious sexual offender.

As such, s6C and s6D Sentencing Act 1991 apply. The prosecution do not urge a disproportionate sentence be imposed and I am of the opinion I can appropriately sentence you without the need to impose a disproportionate sentence.

I am also conscious when sentencing you, you have not previously served a sentence of imprisonment.

I now formally turn to sentence. In sentencing you I take into account the principles of totality.

Pursuant to s9(1A) Sentencing Act 1991, I must not impose an aggregate sentence of imprisonment if (a) the offender is a serious offender within the meaning of Part 2A and any of the offences of which the offender is convicted is a relevant offence within the meaning of that part. Part 2A refers to serious offenders and incorporates s6C and s6D (amongst others).

Therefore, as I discussed with counsel, an aggregate term of imprisonment cannot be imposed if you are a serious sexual offender on any of the charges (specifically Charge 3 in your case).

I therefore sentence you separately on each of these three charges and then, as I have said, I impose a single Community Corrections Order relevant to those three charges.

On Charge 1 you are convicted and sentenced to 1 month imprisonment.

On Charge 2 you are convicted and sentenced to 2 months imprisonment.

On Charge 3 you are convicted and sentenced to 3 months imprisonment.

Charge 3 is the base sentence and I direct that 7 days of Charge 1 and 14 days of Charge 2 be served cumulatively upon the base sentence.

For clarity the orders for cumulation are upon each other and upon the base sentence.

That results in a total effective sentence of 3 months and 21 days imprisonment.

I direct that after that period of time you then be subject on each of the Charges 1, 2 and 3 to a Community Correction Order for 3 years, to which we have previously referred and discussed, with those core and additional conditions to which I have previously mentioned.

Pursuant to s6AAA Sentencing Act 1991, had you been found guilty of these charges following jury verdict, I would have sentenced you to a term of imprisonment of 4 years and set a non-parole period of 2 years and 6 months imprisonment.

I declare, pursuant to s18(4) Sentencing Act 1991, you have spent 2 days in custody (up to and including 17 September 2015) by way of pre-sentence detention, and that that be entered into the records of the court, and also should I need to revisit this sentence in the future, which I hope I do not.

By virtue of your plea of guilty to the three charges before me you are subject to the Sex Offenders Registration Act. Such is mandatory and for life. Your counsel agreed that such applied to you.

In a moment my Associate, Ms Jackson, will approach you with documents to sign acknowledging receipt of the relevant paperwork, if you like, which tells you a bit about the Sex Offenders Registration Act. By signing that paperwork you are not being asked if you consent to that order being made because I have already made that order. You are merely acknowledging receipt of the documents. If you do not want to sign them, then you do not have to. I have made the order and it is for life, as I have said.

The prosecution also made application for a forensic sample pursuant to s464ZF Crimes Act 1958. Mr Kenny did not seek to be heard on that application. I make the order in the terms sought based on the seriousness of your offending. It will be for a saliva sample, and I must advise you the authorities may use reasonable force to obtain that sample.

Is there anything that is unclear about the structure of the actual sentence or anything that you want to raise with me? Mr Moore?

MR MOORE: No.

HER HONOUR: It's all clear? You don't need help with the (indistinct)?

MR MOORE: No.

HER HONOUR: Everything clear to you, Mr Kenny? Can we give an exhibit number to the chronology, which I'm sorry I forgot to do at the time of the hearing. I've added that as part of Exhibit 1. That will be added to the outline of submissions so the chronology, which wasn't given a specific number, will be added to Exhibit 1. Are there any other matters?

MR MOORE: No, Your Honour.

MR KENNY: No, Your Honour.

HER HONOUR: Thank you. Can you remove Mr Hepburn please? Just wait. Sorry, we have to sign paperwork, sorry. Sorry to do that. Did you want to go back and help him sign? You don't have to, it's up to you.

MR KENNY: No, I will.

HER HONOUR: What about the 464 documents? Excellent. Copies will be made available to the parties. Thank you. Can you remove Mr Hepburn please? Thank you for your assistance Ms (Indistinct) and Mr Kenny. Thanks, Mr Moore.

- - - - - -

Actions

Download as PDF Download as Word Document

Citations

Director of Public Prosecutions v Hepburn (a pseudonym) [2015] VCC 1323

Cases Citing This Decision

0

Cases Cited

9

Statutory Material Cited

0

DP v The Queen [2011] VSCA 1

Du Randt v R [2008] NSWCCA 121

R v Better [2003] VSCA 71

[2015] VCC 1323

18 September 2015