Director of Public Prosecutions v Hester (a pseudonym)

[2022] VCC 121

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Unrestricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN HESTER (A PSEUDONYM)

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JUDGE:	O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	6–10 December, 13–14 December 2021, 4 February 2022
DATE OF SENTENCE:	15 February 2022
CASE MAY BE CITED AS:	DPP v Hester (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 121

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence after trial; Sexual penetration of a child under 16; Course of conduct charge; Offending occurred over 13 month period; Victim aged between 9 and 10 years at the time of offending; Offender aged between 72 and 73 at the time of offending, 88 at the time of sentence; Serious example of offending; Impact of offending on victim significant; Subsequent criminal history.

Legislation Cited:      Crimes Act 1958 (Vic), Sex Offenders Registration Act 2004 (Vic)

Cases Cited:DPP v Weybury [2018] VSCA 120; DPP v Clunie [2016] VSCA 216; PG v The Queen [2013] VSCA 09; DPP v Howard [2021] VSCA 298; Lyon v The Queen [2019] VSCA 251; DPP v Thornton [2016] VCC 946; DPP v Whennen [2018] VCC 2272; DPP v Guzman Acosta [2018] VCC 888; DPP v Ramsay [2017] VCC 1595; DPP v McKenzie [2018] VCC 120

Sentence:                  Total effective sentence of 6 year and 9 months with a non-parole period of 3 years and 9 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C. Duckett	Office of Public Prosecutions
For the Accused	Mr J. Taaffe	Doogue + George

HIS HONOUR:

Introduction

1Nathan Hester,[1] on 6 December 2021 you pleaded not guilty to one charge that at Dingley Village in Victoria between 18 September 2005 and 30 November 2006, you took part in an act of sexual penetration with Annabelle Alanson,[2] a child under the age of 16. That charge alleged that you engaged in a course of conduct over a 14-month period in which you would lingually penetrate the complainant’s vagina. A jury of 12 was then empanelled to try your case.

[1] A pseudonym.

[2] A pseudonym.

2On 14 December 2021, the jury unanimously found you guilty of that charge.

3It is my task now to sentence you for that offending.

Circumstances of offending

4The victim of this offence, Annabelle Alanson, was born in the Philippines in May 1996. She was aged between 9 and 10 during the period spanning the charge. Before 2005 she resided in the Philippines with her mother Paige Hobart[3] and two siblings, her elder brother Ben[4] and younger sister Brianna.[5]

[3] A pseudonym.

[4] A pseudonym.

[5] A pseudonym.

5You were related to the complainant in that you were married to her maternal grandmother and you were therefore her step-grandfather. You were between the ages of 72 and 73 during the offending.

6The evidence called at trial established that you and your wife would regularly visit the complainant and her family in the Philippines each year. You would typically spend three or so weeks with them on the way to holidaying in Europe for the summer, and then spend perhaps a week or so back in the Philippines on your way to returning to Australia.

7Ms Alanson gave evidence that you commenced sexually abusing her in the Philippines when she was “about six”. On that first occasion she described being on a bed in a hotel room after you had removed her clothes. You then licked her vagina for what she said was not a short time. She also stated that the same thing would occur each time you subsequently visited the family in the Philippines. She said that it would happen often.

8She further described one occasion where she stayed over in the same hotel room as you and your wife in Manila. She explained that she was standing next to your bed, closest to where you were lying on the bed. Your wife was apparently asleep next to you. On that occasion you grabbed her hand and placed it on your penis however she quickly pulled her hand away.

9Ms Alanson also indicated that on a couple of occasions you tried to have penile-vaginal sex with her, “but because I was too young, it didn’t really work, obviously.”[6]

[6] Transcript of Proceedings, DPP v Hester (a pseudonym) (County Court of Victoria), Judge Brookes, 26 November 2019, 26.

10In her evidence, Ms Alanson was asked “were there any times that you recall your step-grandfather and your grandmother visiting Manila and seeing you during a trip, that things didn’t happen sexually?” She responded, “No”.[7]

[7] Ibid 25.

11It should be noted that the evidence as to sexual abuse which took place in the Philippines was relied on by the prosecution during the trial to demonstrate your sexual interest in the complainant.

12Ms Alanson also suggested that she was treated differently from her siblings by you, both in Manila and later when she came to live in Australia. She said that you would get her to dress up in short skirts or, as she put it, sexy clothing, and take photographs of her in suggestive poses.

13You also sent her birthday cards and postcards which became exhibits at trial. On the cards you drew a symbol not unlike the “@” sign used in emails. You told her that you created this symbol to let her secretly know that you missed her “in that way” (sexually). The prosecution led this evidence as further demonstrating your sexual interest in the complainant.

14In September 2005, the complainant, her mother and her siblings came to live in your house at Dingley Village here in Victoria.

15Not long after arriving, perhaps a month or so, you took the complainant to the en- suite bathroom next to your bedroom. You made her lay down in the walk-in wardrobe connected to that bathroom. You then took off her pants and licked her vagina “for a while” as she put it. When you had finished, you told Ms Alanson to leave the room first.

16Having described that event, the complainant then gave the following evidence:

“What occurred in the walk-in wardrobe, or near the en suite did that ever occur again?----- yes.

Whilst you were living at that house in Dingley Village?--- Yes.

How often?--- I don’t know, maybe once or twice every two weeks.

For how long?----Um, ‘til I was about the end of- ‘til I – ‘til we like moved out.”[8]

[8] Ibid 44–5.

17According to the evidence, the complainant moved out with her family and siblings from the house at Dingley Village in November 2006. Sexual contact became less frequent after that time. Ms Alanson stated that you licked her vagina “a handful more times”.[9] Those latter occasions do not form part of the charge for which you will be sentenced.

[9] Ibid 46.

18Ms Alanson said that she did not report these matters to the police until February 2017. That delay was explained in that you had told her on a number of occasions that her mother wouldn’t understand what was going on between you. She said she had worried that her mother would disown her if she disclosed the abuse. She also felt ashamed.

19During the trial you gave sworn evidence denying all of the allegations.

Victim Impact

20Ms Alanson’s victim impact statement makes difficult reading. It is a study in just how pervasive and enduring the damage from sexual abuse can be. She documents how her childhood was taken from her by you and how right throughout her life she has attempted to manage the ongoing impact of the trauma she went through. She expects to remain in therapy for much of her adult life as she continues to struggle to lead a normal life and meet her work and family commitments.

21Ms Alanson recalled being told in cross-examination that she had made this offending up. In her victim impact statement, she responded that she wished it were not true, that she wasn’t abused, that she had normal grandparents, that she had experienced a normal childhood and that her “…repulsive memories didn’t haunt me every day of my life.”

22A victim impact statement was also provided by Ms Hobart, the victim’s mother. She blames herself for trusting you and agreeing to bring Ms Alanson into your home when she and her children came to Australia from the Philippines. She too has struggled with feelings such as guilt, anger and despair at what you did to her daughter. She also has undertaken counselling to help her cope.

23You should understand that the impact of your offending will be an important consideration to be taken into account in the formulation of the sentence that must now be imposed upon you.

Personal History

24You were born in October 1933 and are now 88 years of age. As I indicated earlier, you were 72 and 73 years of age during the timeframe of the charge.

25You grew up in the north of Holland as one of 10 children in impoverished circumstances. You were seven when the Second World War broke out and your family’s circumstances worsened during the war years. By the war’s end, you were assessed as malnourished and took some time to recover as living conditions gradually improved.

26Your schooling was rudimentary and you apparently did not learn to read or write properly until your very late teens. At the age of 14, you left school and obtained an apprenticeship as a printer in Amsterdam. That work was interrupted by a serious bout of tuberculosis that necessitated you being placed in a sanitorium between the ages of 17 and 19. Eventually, you recovered and were able to resume your employment and finish your apprenticeship.

27You met your first wife when you were 20 or so. You married and emigrated to Australia with her in 1956. You initially settled in Ballarat and obtained employment working on lawnmowers, but soon afterwards moved to Melbourne where you were able to get work as a printer. You eventually started your own printing business, which became quite successful. In 1995, at the time you sold the business and retired, it employed 35 people.

28There were three daughters of your first marriage, born throughout the 1960s.

29One of the daughters provided a personal reference which describes you as her greatest supporter. She explained that when she was 13, her mother obtained an order declaring her a ward of the state and that she was placed in a “girls home”. You opposed this arrangement and eventually left your first wife, in part so that your daughter could live with you. This was in approximately 1975. You then sent her to live with relatives in Holland for a year. She stated that when she returned, “I arrived home a much happier 16-year-old, and moved back in with my father”.

30You met your current wife, Georgia,[10] in the Philippines in 1983. You formed a relationship and eventually married in 1990 when she came to live with you in Australia. By all accounts you maintain a loving and supportive relationship with her. In 1995, you sold your printing business and retired. You then commenced travelling to the Philippines and to Europe each year in the way that I have described.

[10] A pseudonym.

31You have two relevant subsequent criminal convictions. In May 2014, you were before the Moorabbin Magistrates’ Court on one charge of Knowingly Possess Child Pornography. On that occasion you were sentenced to 3 months imprisonment, which was wholly suspended for a period of 12 months. You were also placed on the Sex Offenders Register.

32In February 2017, you were before the Melbourne Magistrates Court in respect of two charges of Indecent Act With Child Under 16. The complainants were Ms Alanson and her younger sister Brianna. The indecent act involving Annabelle Alanson consisted of touching her on her upper thigh while seated next to her at the table. She was 13 years of age at the time. Those matters came to light in 2015.

33You were initially sentenced to 9 months imprisonment, 3 months of which was to be served immediately and the balance suspended for a period of 12 months. However, the matter went on appeal to this Court. In May 2017, the appeal was allowed and you were placed on a community correction order for a period of three years.

34It was shortly before that matter was dealt with in the Magistrates’ Court that Ms Alanson provided a comprehensive statement to police detailing your sexual abuse of her. It is that statement which formed the basis of this prosecution.

35Personal references were tendered on your behalf from Ashley Finlayson,[11] Jasmine Hester,[12] Grace Brophy[13] and Lucinda Lapsley.[14] I have taken those references into account.

[11] A pseudonym.

[12] A pseudonym.

[13] A pseudonym.

[14] A pseudonym.

36A Patient Health Summary of 7 December 2021 from your general practitioner was tendered on your behalf. That document sets out the medications you currently take and refers in basic terms to your past and current medical history. It is sufficient to say that you have significant health concerns with respect to cardiovascular conditions, respiratory problems and spinal deterioration.

Defence submissions

37In his very helpful submissions on your behalf, Mr Taaffe emphasised your advanced age and the fact that any sentence now imposed will represent a significant proportion of your remaining years. You went into custody at the time of verdict and he suggested that you have feared for your physical safety and isolated yourself from others whilst in prison. You are also subject to the very restrictive prison regime imposed in response to the pandemic.

38Your various health conditions, he submitted, are significant and concerning. In light of your age and imperfect health, incarceration will weigh more heavily on you than a younger person of sound health. You are also more vulnerable to COVID-19.

39Despite your subsequent convictions, it was submitted that you have good prospects for rehabilitation. There has been a lengthy period of time since your last offending and because of your advanced age, there is little prospect that you could offend again. You were said to continue to enjoy very strong family support.

40You were interviewed in respect of these matters in March 2017, just on five years ago. You have spent an unusually long time waiting for your trial to be determined. It was listed to proceed in November 2019 but was adjourned because a prosecution witness was unavailable. Thereafter, the pandemic intervened, necessitating further delays. It was submitted that the delay you have experienced was punitive and should be taken into account in your favour.

Prosecution submissions

41In her submissions, Ms Duckett emphasised the gravity of your offending by reference to the disparity in age between you and the victim, the breach of trust involved, the fact that the offending occurred in the family home, that it took place over a significant period of time, that it involved a degree of manipulation of the child/victim and that you lack remorse and insight.

42Ms Duckett submitted that your offending fell into the upper range of seriousness for this offence.

Consideration

43Turning to my consideration of these submissions, this is an unquestionably serious example of the offence of sexual penetration of a child under the age of 16. It encompasses you engaging in a course of conduct in which you sexually abused a 9 or 10-year-old girl. According to the complainant, you engaged in this conduct “maybe once or twice every two weeks”.

44Clearly, the jury accepted Ms Alanson’s evidence, and allowing for some imprecision in her description of these events, you will be sentenced on the basis that you engaged in this sexually abusive conduct reasonably frequently over a 12–13 month period (i.e. October/November 2005 to November 2006).

45There are a number of features of your offending which, when taken together, support the conclusion that it is a serious example of this offence. They are:

·        This is not a single instance of the commission of this offence, but rather a course of conduct in which you abused your victim reasonably frequently;

·        The complainant was very young, being 9 to 10 years of age;

·        You engaged in this conduct over a significant period of time – i.e. a year or more;

·        The offending was not an isolated series of acts, having regard to the victim’s evidence about you sexually abusing her in the Philippines, and, to a limited extent, subsequent to November 2006;

·        The offending involves a flagrant and consistent breach of the trust placed in you by the complainant and her mother;

·        The offending involves an abuse of the power you occupied in the family relationship;

·        The manner in which you carried out this offending shows that you bear a high degree of moral culpability;

·        The impact your offending has had on the victim has been profound and persists to this day; and

·        You have shown no remorse for what you have done.

46As to the prosecutor’s submission that your conduct should be characterised at the upper range of offences of this kind, I note that in Weybury,[15] the Court of Appeal described the debate as to where a case might fall on the spectrum of cases from least to most serious as “not helpful”.[16] Justice Priest suggested that attempts to “shoehorn” particular cases into categories of seriousness such as “upper”, “middle” and “lower” “…are often calculated to obscure the essential nature of the sentencing task”.[17] For the purposes of explaining my reasons for imposing this sentence, it is sufficient I think for me to state, as I have, that this is a very serious example of the commission of this offence.

[15] DPP v Weybury [2018] VSCA 120.

[16] Ibid [33], per Maxwell P & Hargrave JA.

[17] Ibid [54], in dissent as to the result, but not as to this point.

47As I remarked during the plea hearing, it is, from your perspective, fortunate that the maximum penalty applicable to this offending is just 10 years imprisonment. That is so because the complainant turned 10 in May 2006, although she was 9 years of age during the first 6 or so months of the time period of the charge. Had she been 9 years of age throughout, the maximum penalty would have been 25 years imprisonment. Indeed, by way of further comparison, if this offence had been committed after July 2017, you would have been liable to a maximum penalty of 25 years in circumstances where the prescribed standard sentence would have been 10 years imprisonment.[18]

[18] Crimes Act 1958 (Vic) s 49A (2) & (3) – Sexual penetration of child under the age of 12

48I was provided with quite a number of previous decisions for the purposes of taking into account current sentencing practice.[19] However, I have found those decisions to be of very limited assistance, once allowance was made for the variation in maximum penalties and the fact many of those decisions involved pleas of guilty. As was said in Howard with respect to cases where there had been a plea of not guilty, recourse to statements made pursuant s 6AAA of the Sentencing Act 1991 was not likely to be a satisfactory comparative approach.[20]

[19] DPP v Clunie [2016] VSCA 216; PG v The Queen [2013] VSCA 09; DPP v Howard [2021] VSCA 298; Lyon v The Queen [2019] VSCA 251; DPP v Thornton [2016] VCC 946; DPP v Whennen [2018] VCC 2272; DPP v Guzman Acosta [2018] VCC 888; DPP v Ramsay [2017] VCC 1595; DPP v McKenzie [2018] VCC 120.

[20] At paragraph [56].

49You committed this offence when you were 72 or 73 years of age. You are now 88 years of age. You have relevant subsequent convictions. Were it not for your age, those subsequent convictions would tell against a submission to the effect that you have good prospects for rehabilitation. However, I accept to some reasonable extent Mr Taaffe’s submission that your advanced age and precarious health render it  less likely that you will re-offend.

50I will take into account the delay pending trial which I accept has been punitive and constitutes a form of punishment in itself for your offending. I also accept that your circumstances render imprisonment more burdensome for you, particularly given the current restrictive prison regime and your vulnerability were you to catch COVID-19. I see those matters as particularly relevant to the fixing of an appropriate non-parole period.

51That said, your high moral culpability for this offending points to the need to emphasise the sentencing purposes of just punishment and denunciation. Moreover, the protection of children from sexual abuse, particularly from older family members who would use their position to manipulate and exploit a vulnerable child as you did here, is of fundamental concern to sentencing courts. That is an important additional purpose for imposing this sentence.

52In committing this offence you engaged in a wilful and arrogant breach of trust that has had traumatic consequences. Although I am constrained by the 10-year maximum penalty, the sentence that I must now impose must nevertheless reflect the totality of your conduct, involving as it does serious offending which occurred reasonably frequently over a period of a year or more.

Sentence

53Taking all relevant matters into account, on Charge 1 you will be convicted and sentenced to serve a term of imprisonment of 6 years and 9 months, and I will fix a non-parole period of 3 years and 9 months.

54I will declare pursuant to s 18 of the Sentencing Act 1991 that you have already served 64 days by way of pre-sentence detention and I will cause that declaration to be noted in the records of the court.

55I will also note that, as a consequence of the commission of this offence, you will be required to comply with the reporting conditions of the Sex Offenders Registration Act 2004 for the rest of your life.