Director of Public Prosecutions v Hewitt

[2014] VCC 1222

IN THE COUNTY COURT OF VICTORIA  Revised
(Not) Restricted
Suitable for Publication

AT BENDIGO
CRIMINAL JURISDICTION

CR-12-01343

DIRECTOR OF PUBLIC PROSECUTIONS

v

JON EDGAR HEWITT

---

JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	1 August 2014
CASE MAY BE CITED AS:	DPP v Hewitt
MEDIUM NEUTRAL CITATION:	[2014] VCC 1222

REASONS FOR SENTENCE
---

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

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Ellis
For the Offender	Ms J. Swiney

HER HONOUR: 

1Jon Edgar Hewitt, you have been found guilty by way of jury verdict on one charge of indecent assault, being Charge 2.  You were acquitted by direction on Charge 1 of indecent assault and by jury verdict on Charge 3 of indecent assault.  The maximum penalty for indecent assault is ten years' imprisonment.

2The prosecution made application for the taking of a forensic sample from you. The making of that order was consented to. The prosecutor also made a submission that I should exercise my discretion pursuant to s.11 of the Sex Offenders Registration Act 2004 for you to be placed on the sex offender register. The effect of doing that would be that you would be required to comply with the reporting conditions for your life. The making of that order was opposed.

3The circumstances of your offending are as follows.  On 3 February 2012 you were visiting the victim in this matter.  The victim at that time was an 88 year old lady and was a resident in a nursing home.  You had been a friend of the lady and her family for about 20 years.  The victim suffered from dementia and required nursing home care.  There was medical evidence in the trial that her cognitive state was such that she would not have understood the nature of your actions or been able to complain.  You were seen by a member of the nursing staff to be sitting very close to the victim in the lounge area.  You rubbed your hand up and down the victim's left leg, on the thigh area, pushing her dress up and down.  This lasted for a matter of seconds.

4Six victim impact statements were provided from the lady's family members.  She is, of course, unable herself to make any victim impact statement.  Those victim impact statements describe the effect of your offending on family members.  The family members describe their grief, anger, distress and stress at what you have done.  They refer to the violation of trust and betrayal of your friendship.  They refer to the vulnerability of their loved mother, grandmother, mother-in-law and aunt.

5In sentencing you, I have taken into account your personal circumstances.  You are now 64 years old.  You are a single man living in country Victoria.  You have lived in the same Ministry of Housing unit for the last 14 years.  You were brought up in the Melbourne area.  You have worked mainly in driving trucks.  You married in around 1980.  You had to give up driving in 1988.  By that time you had been diagnosed with diabetes.  As I will come to, you were sentenced to a gaol sentence in 1995.  It appears that your marriage broke down after that and you have not seen your ex-wife since that time.

6You have damage to your feet as a result of your diabetes and are now unable to work in paid employment.  You have in more recent years been involved with the Assembly of God Church in the country town in which you live. 

7References were provided as part of the defence material, which was provided as Exhibit 1.  It appears from those references that you are regarded as a committed member of your church, who is described as being helpful, reliable, honest and loyal.  A friend of 20 years speaks of you being honest and helpful.  A friend of ten years describes you as helpful and as being trusted in respect of the family members of your friend. 

8You have a significant medical history.  This medical history is supported by the medical reports which were tendered as part of the defence material.  You were diagnosed with diabetes in the early 1980s and have been insulin-dependent since 1980.  You have suffered from numerous complications relating to your diabetes, including a series of minor amputations, neuropathic arthropathy, chronic foot ulceration highly susceptible to infection, intermittent vitreous haemorrhages in both eyes and high blood pressure and low kidney function.  It appears that you may eventually require dialysis.  You are seeing a wound specialist once per month.  You also see a podiatrist every ten days and a doctor for wound dressing weekly.  You have, at the present time, a large open ulcer on your foot. 

9I accept the defence submission that the medical reports tendered indicate that the most pressing complication of your diabetes is the chronic ulceration which is highly susceptible to infection.  You have had a number of minor amputations, but any further infections may risk further amputations in relation to your feet.

10You have admitted a relevant prior criminal history.  In 1995 you were sentenced to a significant period of imprisonment in relation to two charges of rape.  In May 1998 you successfully appealed a sentence which had been imposed in December 1996.  In May 1998 you were resentenced to a term of imprisonment in relation to three charges of indecent assault.  In October 1998 you were sentenced in the Kerang County Court to two charges  of indecent assault.  Again you were sentenced to a term of imprisonment to be served concurrently with the term that you were then undergoing. 

11In sentencing submissions your counsel particularly relied on the short period of time involved in your offending and the nature of the offending, which was submitted to be at the lower end of the scale for this type of offence.  It was also submitted that imprisonment would be a greater burden on you due to your various medical conditions, and the risks of imprisonment were addressed.  It was submitted that there was a high risk of infection or other grave adverse effect on your health if you were imprisoned. 

12Your counsel said you had support within the community, as evidenced by the references, and that a custodial sentence would not be appropriate.  Your counsel submitted that the appropriate sentence would be a community correction order.

13The prosecutor submitted that in view of the nature of your offending, your plea of not guilty, your prior criminal history and your medical situation, that a short term of imprisonment or a community correction order would be within the appropriate sentencing range.

14Mr Hewitt, there is a serious aspect to your offending.  That is, the particular vulnerability of the lady against whom you offended.  On this occasion you took advantage of her vulnerability to engage in an act of a sexual nature.  That was an insult to her physical person and to her dignity.  She, of course, is unable to say what, if any, effect that had on her, but her relatives clearly outline the harm that has caused to them when they think of this occurring to their beloved relative. 

15This offending is particularly disturbing in view of your prior criminal history.  I have no details in relation to the matter for which you were sentenced in October 1998, but in respect of the other matters, it is clear that you offended against children who were known to you.  This offence for which I am sentencing you is another instance of you abusing a vulnerable person known to you who trusted you, as did their family. 

16Your actual actions may have been at the lowest end of indecent assault and occurred over a very short period of time, but the context and circumstances of this offending increase its gravity.  Your behaviour must be strongly denounced and appropriately punished.  I must consider a sentence which serves to deter others from similar offending and which deters you from repeating your offending.  In view of your lack of remorse and prior criminal history, I consider that your prospects of rehabilitation are moderate at best.  I consider that a short term of imprisonment would be an appropriate sentence for those sentencing purposes if it were not for your medical circumstances and your age. 

17I consider that it is unlikely that you would be able to receive appropriate care for your medical conditions in custody, particularly in relation to the open ulcer and other medical conditions in respect of your feet.  It is my view that a reasonably lengthy community correction order with conditions that you be supervised and engage in a sex offenders program, if considered suitable, would sufficiently address the relevant sentencing considerations and would be likely to do more to protect the community than a short prison sentence.

18In respect of the sex offender registration, your counsel opposed the making of such an order, as I have said.  Your counsel argued that given the purposes of that registration and your current circumstances and knowledge in the community of your offending, that such an order would not be required.   I have given consideration to counsel's arguments.  It is clearly the purpose of registration, to assist in the prevention of further offending and the detection of offenders if offending occurs.  I have given consideration to these matters, particularly in the light of your history.

19Despite there having been a gap in time in your offending, I have real concern that if you had the opportunity, you would offend again in a sexual way against a vulnerable person. I am satisfied beyond reasonable doubt that you do pose a risk to the sexual safety of one or more persons of the community, and for those reasons I consider it appropriate that, pursuant to s.11, an order be made that you be placed on a sex offender register. I say that in the context that you, on this occasion, have been found guilty of only one Class 4 offence. You will, therefore, be required to report for the remainder of your life. Shortly you will be given paperwork which explains your obligations, and I will return to that matter in a moment.

20Your counsel consented to the making of an order for the taking of a forensic sample from you.  I make that order because of your prior convictions, the consent that you have given, and that I consider the granting of the order is in the public interest. 

21An order will be made that you report to a police station for the taking of a sample.  I am required to inform you that if you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.  I am sure that will not be necessary and that you will cooperate with the authorities.

22Could you please stand, Mr Hewitt?

23The community correction order that I propose placing you on, if you consent, would last for two years.  You would be required to report to the Bendigo Community Correctional Services.  I understand that in the conversation you had with a person from Correctional Services, they explained to you the core conditions of such an order.  Is that correct?

24OFFENDER:  Yes, Your Honour.

25HER HONOUR:  The special conditions that I would impose is that you be under the supervision of a Corrections officer and that you undergo programs or courses aimed at addressing factors relating to the offending, as directed by the regional manager.  That will mean you will be assessed for the sex offenders program and, if considered suitable, you would be placed on that program.  I understand that that has been explained to you.

26OFFENDER:  Yes, Your Honour.

27HER HONOUR:  Now the other thing that I need to explain is that if you breach this order by not complying with the directions or by further offending, then you can be brought back before me for resentencing.  That clearly would be a very serious matter. 

28Do you understand the effect of a community correction order?

29OFFENDER:  Yes, I do.

30HER HONOUR:  Do you consent to such an order being made?

31OFFENDER:  Yes, I do.

32HER HONOUR:  All right, thank you.  You can take your seat again.  Thank you. 

33So the formal order is that in respect of Charge 2 of indecent assault, you are convicted and sentenced to a community correction order for a period of two years with the special conditions that have been outlined. 

34I would ask now that Ms Swiney accompany my associate, Ms Olquist, so that Mr Hewitt can sign the documentation acknowledging that he has received the sex offender registration documentation and he can also sign, indicating his consent to the community correction order.  Thank you, Ms Swiney.

35(Sex offender documentation signed and acknowledged.)

36(Community correction order signed and acknowledged.)

37MS SWINEY: Thank you, Your Honour.

38HER HONOUR:  Thank you very much.  Now, Ms Swiney and Ms Ellis, is there anything I haven't dealt with that I need to deal with? 

39MS SWINEY:  No, Your Honour.

40MS ELLIS:  No, Your Honour.

41HER HONOUR:  All right.  Thank you both for your assistance.  Mr Hewitt, I hope you comply with all those requirements and that you do not return to court in the future.

42OFFENDER:  I will, Your Honour.

43HER HONOUR:  Thank you.

44MS ELLIS:  As Your Honour pleases.

45MS SWINEY:  As Your Honour pleases.

‑ ‑ ‑