Director of Public Prosecutions v Hewlett

[2015] VCC 1245

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

AT BENDIGO
CRIMINAL JURISDICTION

CR-15-00552

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN FISHER HEWLETT

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	2 September 2015
DATE OF SENTENCE:	2 September 2015
CASE MAY BE CITED AS:	DPP v Hewlett
MEDIUM NEUTRAL CITATION:	[2015] VCC 1245

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	OPP
For the Offender	Mr P. Dunn QC

HIS HONOUR:

1John Fisher Hewlett, you have pleaded guilty to one charge of indecent assault.  This offence carries a maximum penalty of ten years' imprisonment. 

CIRCUMSTANCES OF THE OFFENCE

2In this case a Summary of Prosecution Opening was read in Court.  It contained an agreed statement of facts between the prosecution and you.  At the time of the offence you were 60 years old.  Your victim was 56 years old.  I will refer to her as "KL" in this sentence.

3

KL and you met for the first time at an evening Firearms Safety course on

17 April 2014 which was run by the accused, yourself.  The course conducted by you involved an assessment, which is a prerequisite for obtaining a Victorian Firearms Licence.  KL passed the course and, at the conclusion of the evening, was introduced to you by her boyfriend, who you had known for some 30 years, him having lived in a neighbouring property to your family over those many years.

4During the course of the introduction, you offered to provide KL with a letter authorising her to shoot on your property at Bamawm.  You provided KL with your personal contact details in the presence of her boyfriend.

5On the evening of Easter Saturday, 19 April 2014, KL returned from a trip to Melbourne.  At approximately 6:00 pm she dropped her nephew and sister home and called you on your mobile phone.  When KL arrived at your home shortly after 6:00 pm, you were seated outside having a glass of wine on the veranda of your home.  You invited KL to join you for a glass of wine and she accepted.  You then showed KL around the family home and explained that your wife was away visiting one of your children.

6After looking around the house and admiring some old leather bound books, KL and you moved to the kitchen area in the house, where you continued to drink red wine and talk.  Whilst in the kitchen, you approached KL and rubbed her lower back.  You then placed your hands under her clothing and bra and cupped and fondled her breasts.  That is the charge of indecent assault.

7KL did not consent to this touching and told you, whilst it was occurring, that it was “not right”.  You then removed your hands from the complainant and stepped away. 

8KL then told you that she was going to check on her dog in the car.  She left the house and went to her car.  When at the car, KL sent a text message to her boyfriend, who was away camping with his family for the Easter weekend.  She returned a short time later and you printed off the letter authorising her to shoot on your property. 

9Following this, you and KL rode together on a quad motorcycle to a gun shed, where the two of you looked at your guns for around 45 minutes.  The two of you then returned to the main house, where KL remained for some hours, returning to her own premises sometime after midnight.  Both you and KL were consuming red wine together on this particular evening.  Throughout the evening, KL had her phone with her inside charging on the kitchen bench in your house.  She used this on a number of occasions in an attempt to contact her boyfriend, both by SMS and Voice Call, but he did not respond.

10The next day, on 20 April 2014, KL's boyfriend noticed a number of calls and text messages on his phone from KL.  He called KL back and she commenced crying and disclosed what you had done, that is, you had touched her breasts.  KL reported the incident to the police on the following day, Monday 21 April 2014. 

11On 8 May 2014 you exercised your right to make a "no comment" record of interview to the police. 

CHRONOLOGY OF PROCEEDINGS

12On 8 May 2014, you were charged with this relevant offence.  On 1 April 2015, you were committed to stand trial in the County Court.  In June 2015, after plea negotiations between the prosecution and your legal representatives, this matter resolved into a plea of guilty to indecent assault.  By virtue of the withdrawing of the remaining charges, the Crown accepted that the plea that you have now made is at the early stage of the proceedings and has facilitated the administration of justice. 

VICTIM IMPACT STATEMENT

13Your victim, KL, had filed a victim impact statement dated 28 July 2015.  In the course of this plea she read her statement into evidence.  In that statement she set out your offending has destroyed her confidence and happiness.  She states that she is now on medication for depression and attending a psychologist and that her relationship with her boyfriend is very strained.  I accept your offending has impacted on KL's life and that she has lost the ability to trust other people around her.

PERSONAL CIRCUMSTANCES

14You are now 62 years old.  You have no prior convictions.  I have been told there are no subsequent charges.  Until now, you have led a blameless life and you have made one grave mistake, offending against KL in this way. 

15You were born in Echuca.  You grew up on a dairy farm in Lockington.  You have two sisters.  Initially you were educated at Lockington Consolidated School.  At that time you were in the Cubs and the local choir.  You attended Echuca Technical School and completed what I am describing as a Farming Course in Agricultural Science at Year 11.

16In 1972 you worked on the family farm and you joined Young Farmers.  In 1973 and 1974, your father bought more farmland to expand the business.  You also trained to be a wool classer and did some contracting work in order to earn yourself some extra money.

17In 1975 you met your future wife at a Young Farmers ball.  In 1977 you were married.  You have two sons from that union, now aged 36 and 34.

18In your time at Lockington you have been a member of the local CFA, Apex and Goulburn Murray Water Authority.  Your wife has also been an active community contributor as a school councillor and netball coach.

19In 1995, as it was described here in court, the “long drought” started.  Your wife returned to work at Rochester Hospital.  Your boys settled into other careers, not to do with agriculture in the direct sense.  By 2005 the debt on the farm and other matters came into play and your father retired.  The boys had left the farm at Lockington, and so the farm was sold and the estate itself was split up between your family.

20You moved to Bamawm. You built the house on the property at Bamawm where this offence occurred.  You live with your wife on this beef cattle farm now.

21After your interview with police, you suffered an anxiety attack and were taken to the local hospital.  As I previously noted, your committal was on April Fools' Day this year and you are now before this court for sentence on the second day of spring.  Spring is a season of hope for farmers. 

22In the course of your plea there were a large number of testimonials tendered and relied upon in support of your character and your contribution to the community over the course of your life. 

23The references and testimonials were from Roger O'Hara, who is a retired primary school teacher and a member of the Anglican Church.  He attested to your contributions within that church. 

24A testimonial from William McMinn, who you have grown up with.  He spoke of your generosity to less fortunate people than yourself.  Examples of it being, giving free accommodation to people so they could get ahead; that you had stepped in, in his own life, to settle a family dispute between his brother and himself over a tragedy within that family; and a little bit of lateral thinking on your behalf when there was an issue within the Lockington community about where a Telstra mobile phone tower was to go. You donated some of your property so that the tower could go on it and the rents from that property were sent to the church. 

25Ray Kilsby, who is a CFA member, spoke of your contributions, one to the CFA in general, but more particularly, in your part, amongst fire fighting and, more recently, in the floods of 2011 in the Lockington and Rochester area. 

26Peter Ilgo, who is a water consultant, spoke of your dealings with him and the proper manner in which he regarded you. 

27Peter Green is a plumber, a young farmer and from a family that settled with your family in the district of Lockington and Bamawm. 

28Nola Lynette Mitchell spoke of your contributions in regard to tennis and to the local school at Lockington. 

29Kyle Nicholl, who was your shooting connection, is the way I would describe it, noted that you were the person who commenced the shooting club where you met the victim of your crime.  Kerry Cock is also from the gun club and attested to your good character. 

30Garry Musty also referred to your time as a CFA member, as a good neighbour and someone who very seriously contributed during the course of the floods of 2011.

31I have a report from your doctor, Dr Quade, who set out your depression and your treatment for it now.

32Also Doug and Faye Murray, Chris and Alberta Watts, Matt Le Maitre, Peter Rungie and Lisa Rungie.  All of those people are people who have known you for a long time and attest to your good character. 

33Also a reference from your wife.  She was described as an innocent victim in this case.  I think it is more appropriate that she is an innocent party in this case.  Nevertheless, despite your offending in this case, she stands right beside you. 

34In summary, this offence has been a large fall for you, from the position of respect as a farmer, a businessman, a JP, a churchman and a community leader, before facing court today as an offender. 

SENTENCING CONSIDERATIONS

35The basic purpose for which a court may impose imprisonment, and it is not sought here but it is open for a court to sentence you to such penalty, is just punishment, deterrence, both specific and general; rehabilitation, denunciation of your actions and the protection of the community. 

36In sentencing you, I must have regard to a range of factors, such as, the seriousness of this offence, your culpability for it, and your personal circumstances and those of your victim.  I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, you, as an offender, are rehabilitated and reintegrated into society.

37You have pleaded guilty at an early stage in these proceedings.  The plea was after negotiations with the prosecution.  Your plea has a utilitarian value of allowing the orderly and effective administration of justice.  There is a certainty of outcome and the resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of court and police resources to deal with other matters. Your plea vindicates the public confidence in the legal process set up to protect the community. 

38You have, by your plea, relieved your victim from giving evidence in relation to the offence.  I accept that she has given evidence in the course of this hearing.  It facilitates some closure for the victim of your offending.  Your plea also is a clear acknowledgment by you that you accept responsibility for your criminal behaviour in this case.

39Your plea also recognises you are willing to facilitate the course of justice in the community, which is something you have served over the time.  I also accept your plea of guilty to these charges indicates and demonstrates remorse on your part. 

40You are a person who has just entered into the last quartile of your life.  The first three-quarters have been lived in a blameless and contributive manner, to your family first, and to your community. 

41That previous good character and contribution to your community is to be balanced against the offending in this case.  I take into account the circumstances of the offending and the agreed facts.  The current sentencing statistics are not of great assistance to me in this particular case.  Each case is peculiar to its own facts, as this one is.  In this case there is only one charge of indecent assault which occurred over a short period of time and then ceased.

42The prosecutor appropriately conceded that an immediate custodial sentence was not sought in this case and submitted that the whole of the sentencing options were open to the court.  I have decided that a financial penalty is appropriate in this case.  The amount of the fine is to reflect the seriousness of the offence itself, by that I mean the offence of indecent assault, and to balance that seriousness against the short time of the actual offending in your case and the other circumstances set out in the agreed facts.

43I was not addressed on your financial particulars or position, but note that you are a self-employed grazier, operating a beef-rearing operation.

44In deciding whether to impose a conviction or not, I have noted the provisions of s.8 of the Sentencing Act and have regard to all of the circumstances of this case and, in particular,

(1) the nature of the offence, that is, this offending is at the lower end of the range of indecent assault charges that the court hears; and

(2) the character and past history of the offender.  As I have said before, the testimonials set out your previous good character and your extensive community involvement and contribution, your contribution to assist other farms in need, your long-term membership and work with the Country Fire Authority, your membership with the local Water Authority, your membership with the Apex Club and your membership of the gun club and, more particularly, your contribution to your family, and your own family's contribution, your wife's contribution in the community.  You have a son who has served his country in overseas military operations.  Your contributions to the school and church involvement at a local level.  These are all factors that mitigate against convicting you for this one event of gross recklessness on your part in an otherwise blameless and contributive life. 

45Will you stand, please.

46On Charge 1, without conviction, you are fined $5,000.  I have signed the disposal order.

47MR DUNN:  May I ask for a stay of two months, sir?

48HIS HONOUR:  Certainly.  I will grant you a stay of two months to pay that fine of $5,000.

49MR DUNN:  Thank you, sir.

50HIS HONOUR:  Thank you.  You are free stand there or get out of there.  Just before you go.

51Section 6AAA demands that I set a penalty if you did not plead guilty, and it would have been six months' imprisonment. 

52MR DUNN:  If the court pleases.

53MR CORDY:  If Your Honour pleases.  There was a disposal order as well.  Has Your Honour ‑ ‑ ‑

54HIS HONOUR:  Yes, I announced I signed that, yes.

55MR CORDY:  Thank you.

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