Director of Public Prosecutions v Hewitt (a pseudonym)

[2017] VCC 1523

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

GEORGE HEWITT (a pseudonym)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 October 2017
CASE MAY BE CITED AS:	DPP v Hewitt (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 1523

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms B. Bleazby
For the Accused	Mr D. Sala

HER HONOUR: 

1George Herb Hewitt,[1] you have pleaded guilty before me to four charges of unlawful and indecent assault of a girl and two charges of indecent assault.

[1] George Herb Hewitt is a pseudonym.

2The facts underlying your offending are as follows.

3The offending spans 24 years, involves five victims, four of them your nieces and one of them a cousin.  At the time of the offending, you were between
19 and 45 years of age. 

4I not going to refer to the victims by name - these matters are transcribed and it is to protect your privacy. 

5I will start with Victim 1 who was around four at the time of the offending. 
Her father was your brother and she would often attend her grandparent's home where you lived.   Between March 1963 and March 1964 when Victim 1 was about four, you took her and her older brother to your work Christmas function where she received some games as presents.

6After the function, you all returned to your home where the victim and her brother played in the lounge room with some of the games while you sat on the couch.  You said to her "Come over here miss".  Victim 1 went over, you lifted her onto your knees so she was straddling you and you placed the tip of your finger inside her vagina. 

7As she did not like it, she moved her body to get away from you and as she did that, you said to her "This is our secret.  Don't tell anyone".  Those actions underlie Charge 1 on the indictment.

8Charge 2 relates to your cousin who was then six years of age.  Her mother was the sister of your mother.  Between May 1965 and May 1996 when Victim 2 was six or seven, she went with her parents to your home and whilst there went into the workshop underneath the house.  You and she were there alone and as she stood there, you knelt down in front of Victim 2 and asked her "What's under here?".

9You pulled her pants down to the floor, again asking "What's under here?" laughed, and pulled her tights down to floor asking, again, "What's under here?".

10By the time you had finished, Victim 2 was naked from the waist down. 
You rubbed your finger between her legs, touching her vagina, asking as you did "Does it tickle?".  Victim 2 pulled her clothes up and ran to the toilet and on the way home in her car told her parents what you had done to her.

11A little later that night, whilst Victim 2 was in bed, your mother came into her bedroom extremely angry and calling Victim 2 a liar and telling her "You will kneel in front of my minister and you will tell him the truth".

12Ultimately, Victim 2's parents family moved to Queensland when she was ten and she saw no more of you. 

13Charge 3 is a representative count involving two occasions in relation to Victim 3 who was your niece. 

14Victim 3 was aged between 9 and 11 years at the time of the offending. 
For periods during the 1970's, Victim 2 would go to your home almost every second weekend to be cared for by her grandparents whilst her parents worked.  Between November 1975 and December 1976 when Victim 3 was about nine or ten, she was at your home playing hide and seek.  She was sitting on your knee and counting to 100 whilst the other children went and hid. Whilst in that position, you moved your hand inside her underpants and placed a finger inside her vagina.  These actions comprise part of Charge 3 on the indictment.

15Somewhere between November 1975 and December 96, Victim 3 was at your house sleeping on a green couch at which time she was 11.  You got out of your bed during the night, sat on the side of the couch and put your hand inside her pyjama pants and touched her vagina which caused her to wake.

16She yelled “get off”, which woke your mother who came into the lounge room asking you what you were doing.  You told your mother Victim 3 had had a nightmare and you had given her a drink of water.  This action comprises the second incident of representative Charge 3 on the indictment. 

17Charge 4 relates to Victim 4 who was also your niece and she was around eight when you sexually assaulted her.  She too regularly attended your house and every Sunday you and your parents would visit Victim 4 and her family at their home in East Ringwood for morning or afternoon tea. 

18Between May 1978 and May 1980, you were at Victim 4's house which was on a large block with a bungalow in the backyard full of old furniture and other items.  Victim 4 and her brothers often played hide and seek and war games and on this occasion she went into the bungalow to hide and whilst hiding in there, you appeared.

19As she went to run away, you grabbed her in a bear hug saying "Gotcha" and held her with both arms as she tried to get away from you.  Victim 4 told you she wanted to go but you did not answer her or let her go, instead putting one hand inside her underwear and placing your finger inside her vagina.

20Victim 4 repeatedly said "Let me go.  I want to go.  You're hurting me", you responding "Yes, yes" while breathing heavily. Eventually she broke free and ran away.

21Charges 5 and 6 on the indictment relate to Victim 5, also your niece. 
Charge 5 is a representative charge relating to 14 occasions of digital penetration.  Charge 6 relates to three occasions of lingual penetration which occurred at the same time as several of the digital penetrations.

22Victim 5 was the youngest sister of Victim 2.  She was assaulted by you between the ages of six and 12 years.  For many years she walked to your home every afternoon after school and continued to do this until her early secondary school years.

23You developed a pattern of behaviour where you would wait for her in or near the bathroom after she had finished going to the toilet, on each occasion, touching her and putting your hands down her pants and then putting your fingers in her vagina.

24The first occasion comprising part of Charge 5 on the indictment occurred between January at 1984 and January 1986 when Victim 5 was aged between eight and six years.

25She was at your home and had been to the toilet and opened the toilet door to find you standing there.  You said "Hey little missy", walked towards her and forced her back into the toilet, then lifted her school dress and put your hand into her underwear and your fingers in her vagina.  You whispered to her "This is our little secret.  Don't tell anyone".

26During the same time frame, Victim 2 had finished in the toilet and gone into the bathroom and whilst in there washing her hands, you came up behind her and touched her.  You were not wearing a shirt, you put your hand around her waist and into her underpants and then placed a finger into her vagina.

27These actions comprise the second occasion of representative Charge 5.

28The third occasion occurred in the same period when Victim 5 was again the bathroom and only moments from leaving the house when you appeared, saying to her "Where are you off to little missy?".  You prevented Victim 5 from leaving the bathroom by extending your left hand across the doorway and put your hand down her underpants and your finger into her vagina.

29The fourth occasion occurred in the same period when Victim 5 was again in the bathroom and washing her hands after going to toilet when you appeared, put your hands into her pants and put your fingers in her vagina.  When Victim 5 tried to walk away from you, you said "Now, don't be silly, little missy.  Come back here".

30On the fifth occasion, on another day during those same years, Victim 5 was in the backyard of your home on a garden swing when you came into the backyard, stood in front of the swing causing it to stop, moved close to Victim 5, put your hand down her pants and penetrated her vagina with your fingers.  Victim 5 looked towards the kitchen window hoping someone might be there to help but there was no one. 

31The sixth occasion occurred during those same years when Victim 5 was in the workshop underneath your home.  She was there alone with you and as she stood there, you put your hand inside her pants and your finger in her vagina.

32On the seventh occasion, when Victim 5 was about eight, she was at her family home in Whittlesea where there was a caravan inside a shed.  Somehow on this day, you got Victim 5 to the caravan where she went inside, you following her and telling her to lie on the bed. She complied, lying on a bottom bunk bed.

33You then pulled her pants and underwear down to her ankles and removed her shoes so that she was naked from the waist down.  You knelt down beside the bed and placed your fingers into her vagina which action is the seventh occasion contained in Charge 5.  You then put your tongue inside her vagina using your hands to move her hips so her vagina was at your mouth.  This is the first occasion underlying representative Charge 6. 

34You changed between inserting your fingers inside her vagina to inserting your tongue in her vagina which actions she found to be, unsurprisingly, revolting.  When you stopped and she dressed, you said to her "Don't tell anyone.  This is our little secret".

35On another occasion during the same period, Victim 5 was again in the caravan on the bed and whilst in that position you undressed her, knelt beside her and inserted your fingers inside her vagina, this being the eight occasion contained in representative Charge 5.

36You then sucked on her vagina putting your mouth over it and moving your tongue in and out making sucking noses, this being the second occasion contained in representative Charge 6.  Again, you alternated between using your fingers and your tongue to penetrate Victim 5.

37Again during that period you and Victim 5 went to the caravan.  On the way she saw her cat and picked him up, you saying to her "You don't need the cat" to which she replied "I want the cat" as she hoped, as she sat in the caravan holding the cat, that this would prevent you from touching her.

38You, however, said "You don't need the cat here", grabbed it and put it outside the caravan.  Again you then undressed Victim 5 and put your fingers in her vagina - the ninth occasion covered by Charge 5 on the indictment - then put your mouth over her vagina and put your tongue inside it; the third occasion covered by Charge 6.  As in the previous occasions, you alternated between inserting your finger inside her vagina and your tongue inside her vagina. 

39Between January 1988 and December 1990, Victim 5 was at your house sitting on a stool near the pianola while you stood behind her showing her how to use it.  From that position, you put your hand down the front of her pants and your fingers inside her vagina, these actions being the tenth occasion contained in representative Charge 5.

40Between January 1988 and December 1990, you and Victim 5 were in the backyard shed of your house which had books in it under which there was a spare key to the house.

41Victim 5 had previously been locked out and you showed her where you kept the spare key.  After showing Victim 5 where the key was kept, you put your hands down the front of her pants and placed your fingers in her vagina; this being the eleventh occasion of digital penetration covered by representative Charge 5.

42During the period 1988 to 1990, Victim 5 was sitting on a green chair in the lounge room at your home reading a book when you approached her, talked to her about the book she was reading and then put your hand down her pants placing your finger insider her vagina, moving it in and out; this being the twelfth occasion of digital penetration covered by Charge 5.  Victim 5 tried to use the book to prevent anyone from seeing what you were doing.

43Again during those years, Victim 5 was sitting in the green chair in the lounge room at your home.  You were sitting on the couch and the two of you were talking about a sound system in the room, Victim 5 asking you how it worked.  You showed her how to plug the headphones into the system, then leaned over her and put your hands down the front of her pants and put your fingers inside her vagina; the thirteenth occasion covered by Charge 5 on the indictment.

44The final incident occurred between January 1988 and December 1990 on a day after school when Victim 5 walked your home.  You were alone in the house, your grandmother having previously died and Victim 5 being unsure where her grandfather was.

45You asked Victim 5 to go into the main bedroom.  She complied and you put her onto the double bed so that her upper body was on the bed and her legs hanging off the end.  You pulled down her pants and underwear, spread her legs apart and placed your fingers in her vagina, moving them in and out; this being the fourteenth occasion of digital penetration by representative Charge 5.  During this occasion, Victim 5 was shaking and crying. 

46On 19 May 2015, Victim 5 made a pretext telephone call to you during which you made admissions about touching her sexually and apologising to her for what you had done.  I will refer to that pretext conversation later in these sentencing remarks.

47On 10 July 2015, you were arrested by police and participated in a record of interview where you gave no comment answers to allegations put to you. 

48The maximum penalty for Charges 1 to 4, which charges were laid pursuant to s.55(1) of the Crimes Act in operation between 1 April 1959 and 7 November 1967 is three years' imprisonment. 

49Charges 5 and 6 on the plea indictment being charges of indecent assault pursuant to s.44(10 of the Crime Act 1958 in operation between 1 March 1981 and 4 August 1991 is five years' imprisonment.

50I now turn to your personal circumstances.

51You are now 74 years of age, the youngest of three boys born to your parents.  You grew up in Northcote and you were close to your father.  Your counsel told me your mother was an extremely conservative woman, matters of a sexual nature were never discussed in the home and you were forbidden from attending a sexual education program then running at your secondary school.  Both your parents are now deceased. 

52You attended Brunswick Technical School were you failed Year 10 twice and were subsequently unable to take up the carpentry apprenticeship you had wanted.  You have a good employment history however being employed for 18 months at Georges Department Store, being laid off during the recession.  You then worked for three months for Tesco Dowling, a yarn and dying company.  Then from 1962 until 2001 when you retired, worked as a machine operator for Beau Waterscott.  You worked shift hours.

53You always lived with your parents and in your parent's home and have never married but you formed a relationship in the early 1990's with a woman with whom you lived for 12 months, until the shift hours you worked made living together untenable.  You then returned to the family home which had been purchased when you were 18 and where you have resided to this day.

54That relationship has continued and the two of you see each other two to three times a week.  You partner remains supportive of you.

55You have some medical difficulties.  For the past four years, you have suffered from type two diabetes and for the past 20 years have suffered from gout.  You are medicated for both conditions.  You do not have any drug or alcohol difficulties.

56Pursuant to your father's will, you reside in the house he owned for as long it is your primary place of abode.  It has been conceded by defence counsel that only a term of immediate imprisonment is appropriate in this case which will mean that you will no longer, pursuant to the terms of your father's will, be able to reside at that house which will then be sold and the proceeds distributed between the three sons.

57The history of these proceedings is worthy of some note. 

58I have already mentioned the pretext call carried out by Victim 5 on 19 May 2015.  I have seen a copy of the transcript of that conversation during which you admitted offending against Victim 5, stating you felt disgusted with yourself.

59You admitted to touching her vagina, you not admit to oral offending.  Again, as I have stated on 10 July 2015, you made no comment answers to your record of interview with police.

60On 8 August 2016, both Victims 1 and 3 were cross-examined at a contested committal hearing, at the end of that day you entering a plea of guilty. 
However on 12 August 2016 in the County Court, that was plea was rescinded.

61A number of directions hearings relevant to trial proceedings, including an application for Basha enquiries for all complainants was made by you.  Finally on 24 July 2017, the matter was resolved and a plea of guilty was entered and arraignment took place on 26 July 2017.

62I now turn to the victim impact statements.  It is quite clear that your offending against your nieces and your young cousin have caused on-going lifelong distress and trauma to each.

63You have also caused great trauma and stress to the mother of Victims 1 and 5 who also read out her victim impact statement.  Each of the victims lost a sense of safety and self-confidence which has bedevilled them to this day. 
Each of them - and can I say the court sees this all the time - have developed into what they recognize as being over-protective parents of their own children.  There have been detrimental effects on their relationships with men and on their sexual activity with their partners. 

64There is ongoing guilt, there is sorrow in relation to the mother of Victims 1 and 3 at what she perceived to be her failure to protect her children.

65I am satisfied you have caused immense suffering to all of the little girls that you offended against in this way.  I am satisfied that the consequences to them have been severe and each has developed ongoing trauma they have each confronted with enormous courage and I congratulate each of them for having the courage to read out their victim impact statements in court which is never an easy exercise.

66Each of your victims has gone on to forge out a successful life for herself but each have done so under the enormous weight of diminished self-esteem, diminished confidence, a diminished sense of safety in the worlds that they live in and your actions continue to be in their thoughts on almost a daily basis as it seems to me.  The sense of betrayal has never left them and there has been, and the court sees this often, there is a great anguish over the effects of your actions on the unity of the family.

67Your actions included telling each of your victims to keep what you did secret.  Terrible secrets were kept over a very long period of time.  Victim 2, for example, told her parents, was believed, was removed therefore from her extended family and in her victim impact statement it was clear that she felt the loss of that contact very keenly.

68All the other victims suffered from immense fear and that fear included - which is always the case when children are sexually abused in a familial setting- what effect a revelation of this offending might have on their families.

69The terrible aspect of a child keeping a terribly burdensome secret cannot be overstated.  It is ruinous in terms of how a child feels within what otherwise, from my impression in this family, should have been a safe and happy childhood amongst caring adults, amongst an extended family which would offer, normally, an environment of great happiness and stability.  This was completely undermined by you.

70As I have said, I am satisfied you have inflicted deep and lasting damage to this family.  The victim impact statements were extremely difficult to hear.  They contained enormously distressing content. 

71May I say, and I am not trying to single out one person as suffering more than the other, but the description in her victim impact statement by victim 5 of a schoolgirl being scared to go to the toilet and having to hang on for hours and hours because of her fear of being sexually assaulted by you was extraordinarily vivid and an extraordinary demonstration of how damaging this sort of exploitative and predatory behaviour is and indeed was.

72Your counsel submitted that I should find that you have been remorseful for your actions and I have difficulty with the submission.  You may have been prepared to make admissions and apologies to Victim 5 as long as you were not faced with the consequences of your actions.  However, as soon as those consequences emerged as a reality, you promptly retreated from that position of apology.

73Your subsequent actions in requiring examination of two of the victims and then with retracting your plea and then seeking a Basha in relation to all five victims caused delay in the proceedings and, I am satisfied from the victim impact statements, enormous anguish to your victims. 

74You are entitled to a utilitarian credit for saving the community the time and expense of what I understand would have been two trials and for saving at least three of your victims from the trauma of giving evidence in court and the trauma of two of them having to repeat that experience.  But I do regard your remorse as being limited.

75The most serious offending in terms of your own actions and in terms of the time frame was again Victim 5.  This was rendered, in my view, more serious by the fact that her mother confronted you when victim 5 was about three.  She had been informed that you were touching her daughter, and she told you that she would give you the chance to seek psychiatric counselling. 

76You said that you had so it was made perfectly clear what the wrongness of your actions were and yet you continued to offend most seriously against victim 5 for many years.  I regard this an aggravating feature of your offending against her.

77It was conceded by the prosecution that the sentence on Charge 1 should be served wholly concurrently due to the age of the offending which is more than 50 years old, perhaps due to the difficulty in proving it and because of its momentary nature.  It was also conceded that as an elderly first time prisoner, gaol will be onerous for you.

78I do accept that because 27 years have elapsed since the last of your offending, you should be considered to be a low risk of reoffending. I was also informed that you sought psychiatric counselling which you undertook for about 12 months after your mother died in the early 90's.

79However the authorities do make it clear that old age and ill health do not preclude a court from imposing an appropriately severe sentence. 

80The maximum penalties which apply in this case do relate, as they must to the legislation and the maximum penalties that were in force at the time of that offending.  They are far lower than the penalties that apply today. 

81If your offending had been current offending, you would have been charged with sexual penetration of a child under ten, the maximum penalty for which is 20 years' imprisonment.  All of your offending involved sexual penetration and I regard all of this offending as a serious example of the charges which you now face.

82The case of Stalio v R (2012) VSCA 120 makes it clear that a court must be guided by the lower maximum penalties applicable at the time of offending. However, it also made it clear that a court can include as relevant the matters contained in s.5(1) of the Sentencing Act, that is the purposes of sentencing and that also relevant are the matters contained in s.5(2) of the Sentencing Act.

83At paragraph 70, the Court stated

" The consideration of the nature and gravity of the offence, the offender’s culpability and degree of responsibility for the offence, the assessment of aggravating factors, the impact of the offence on the victim, the personal circumstances of the victim, and any injury resulting directly from the offence are all informed by the community’s current understanding of and abhorrence for such offending"

84What that means is that in historic cases such as this a court may have regard to current community attitude toward this offending.  At the time of your offending, current community attitudes were vastly different to what they are now.  It is now recognised that child sexual abuse is widespread.  This was not considered to be the case when you were offending against your nieces and cousins.

85Further, the impact of sexual offending against children was not recognised in terms of its gravity and long-lasting consequences in the way that it is today. 

86Again, at paragraph 72, the Court stated:

"The abhorrence of the community for offending of the type in issue was a factor in which the judge" – (I am referring to the judge in that case) - "was entitled to consider when fixing a penalty which was just in all of the circumstances and which properly reflected both the need for specific and general deterrence and the need to manifest an appropriate denunciation of the conduct in issue".

87What that means is that I am entitled to take into account current community attitudes and abhorrence for your offending in determining the appropriate term of imprisonment.  I accept that because of the delay and because of the lack of subsequent history that specific deterrence is not a matter in this case to which I should have regard.  But issues of general deterrence, denunciation of your conduct and punishment for it are very much live issues in my view. 

88In sentencing you, I do take into account each of the mitigatory factors I have referred to, but this was also clearly long-standing, persistent offending of a type which was a serious example of its kind and involved a gross breach of trust against very young, vulnerable children who have gone on to suffer life-long anguish and emotional trauma as a result.

89As I have said, aspects of denunciation, general deterrence and just punishment are primary considerations for this court, balanced out against the maximum penalties applicable at the time of this offending.

90Could you stand up please sir?

91On Charge 1, you are sentenced to ten months' imprisonment.

92On Charge 2, you are sentenced to ten months' imprisonment.

93On Charge 3, you are sentenced to 15 months' imprisonment. 

94On Charge 4, you are sentenced to 12 months' imprisonment.

95On Charge 5, you are sentenced to three years and six months' imprisonment.

96On Charge 6, you are sentenced to 18 months' imprisonment.

97The base sentenced will be the sentence imposed on Charge 5, three years and six months' imprisonment.  I order that four months of the sentence imposed on Charge 2, six months of the sentence imposed on Charge 3, five months of the sentence imposed on Charge 4 and nine months of the sentence imposed on Charge 6 be served cumulatively to the sentence imposed on Charge 5 and all other sentence, giving a total effective sentence of five years and six months. 

98I order that you serve a minimum term of three years and six months before becoming eligible for parole.

99I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of seven years and ordered that you serve a minimum term of five years. 

100Thank you.  Is there anything else that I need to - you will be placed upon the Sex Offenders Register for life.  Have a seat sir while the documentation is prepared.

101MS BLEAZBY:  Your Honour, there was a PSD of two days as well?

102HER HONOUR:  I declare that two days of this sentence have already been served way of pre-sentence detention. 

103MS BLEAZBY:  Your Honour, there is a forensic sample application as well.

104HER HONOUR:  Yes, I think I was going to ask for that to be - has that been handed up?

105MS BLEAZBY:  It was handed up at the plea.

106HER HONOUR:  Where have I put it?

107MS BLEAZBY:  A copy has been e-filed ‑ ‑ ‑

108MR SALA:  I think it's been consented to, Your Honour.  I mean, if there's - the orders can be made in chambers.

109HER HONOUR:  Yes, it was - it was consented to because of the seriousness of the offending.

110MR SALA:  Yes, so we would take no issue ‑ ‑ ‑

111HER HONOUR:  I've got it here.  Yes, I haven't lost it, all right.  Thank you.  Let me just see.  Can you stand up please sir?

112I have ordered that police undertake a swab - saliva swab from your mouth. 
I need to tell you that should you not cooperate with police, they are entitled to use reasonable force in order to obtain it.  Have a seat, thank you.  Thank you, yes.  Your counsel explained to you, sir, the obligations - your obligations under the Sex Offenders Register?

113MR SALA:  May I be excused from the Bar table to approach with your associate, Your Honour?

114HER HONOUR:  Yes, certainly.

115MR SALA:  Thank you.

116MS BLEAZBY:  Your Honour, can I just raise the serious sex offender provisions?  I think you have to make ‑ ‑ ‑

117HER HONOUR:  Yes, you are - the accused man is a serious sexual offender to be sentenced as a serious sexual offender from Charge 3 onwards.  That's correct?

118MS BLEAZBY:  Yes, Your Honour.

119HER HONOUR: Thank you. I note the Crown did not a disproportionate sentence pursuant to s.60 of the Sentencing Act.  Thank you.  Thank you, is there any further that I need?

120MS BLEAZBY:  No, Your Honour.  Those are the matters.

121MR SALA:  No matters that I'm aware of.  Thank you, Your Honour.

122HER HONOUR:  Thank you very much, Mr Sala.  We will stand down until 10.30, thank you very much.

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