Director of Public Prosecutions v Hezel

[2014] VCC 669

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR 14-00192

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL HEZEL

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Shepparton
DATE OF HEARING:	9 May 2014
DATE OF SENTENCE:	9 May 2014
CASE MAY BE CITED AS:	DPP v Hezel
MEDIUM NEUTRAL CITATION:	[2014] VCC 669

REASONS FOR SENTENCE

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Subject:  Plea - sentencing
Catchwords:              Sexual penetration of child under 16 - indecent act with child under 16 
Legislation Cited:     Sex Offenders Registration Act 2004
Cases Cited:
Sentence:                  12-month Community Correction Order without conviction

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Offender	Mr C. F. Morgan	Cameron Lawyers

HIS HONOUR: 

1Michael Hezel, you have pleaded guilty to two charges of sexual penetration of a child under 16 years and one charge of indecent act with a child under 16 years. 

-    Sexual penetration of a child under the age of 16 in the present circumstances carries a maximum penalty of ten years' imprisonment;

-    Indecent act with a child under the age of 16 carries a maximum penalty of ten years’ imprisonment. 

2You were born on 24 December 1993 and were aged between 17 and 19 over the period of this particular relationship, but aged 17 at the time the offending commenced.  You are now aged 20. 

3You have no criminal record. 

4The detailed circumstances of your offending are set out in the prosecution opening as Exhibit “A”.  I do not intend to recite them all again.  I accept those facts for the purposes of sentencing.  In essence, the circumstances are as follows. 

5The victim in this matter was born on 14 July 1998.  She was placed in foster care with your family in Mansfield in November 2010.  Her foster parents were your parents and they have three biological children; you are the oldest of those children. 

6

In January 2011, your family travelled to Eden in New South Wales.  You and the victim shared a hotel room and your beds were next to each other.  During the night you leaned over and started kissing her.  On this occasion you digitally penetrated her (and this is an uncharged act). You and the victim touched one another on other occasions also whilst on holiday in Eden.     

7Shortly following the holiday, you and the victim commenced a sexual relationship and as I said, at this time she was 12 and you were 17. 

8The victim recalls that not long after returning to Mansfield, you entered her bedroom late at night and you had sexual intercourse.  It is this conduct that gives rise to Charge 1: sexual penetration of a child under 16 years, which is a representative charge of continuing conduct.

9Sometime after returning from Eden on an occasion between 1 January 2011 and 31 May 2011, you and the victim had oral sex: you penetrated her mouth with your penis.  This conduct gives rise to Charge 2: sexual penetration of a child under 16 years. 

10On the same occasion you placed your mouth on the victim's vagina.  This conduct gives rise to Charge 3: indecent act with a child under 16.  This event occurred at approximately the same time that you and the victim had penile/vaginal sex for the first time. 

11Later, you and the victim would have sex on other occasions. 

12You moved out of the family home in early 2013.  On one occasion the victim attended on you at this residence.  She entered the bungalow at the back of the property where you slept.  You and she had penile/vaginal intercourse on the bed. 

13The last time the victim remembers penile/vaginal intercourse with you was an occasion in May 2013.  The victim was at home alone during the day; you attended at the family home and you both engaged in intercourse in your parents' bedroom. 

14The victim and you discussed her age over Facebook.  You agreed that it would be better when she was older; however the two of you continued to engage in sexual conduct despite this conversation. 

15The victim moved from Mansfield to Wangaratta to live with her sister in May 2013.  On Saturday 30 June 2013, her sister was searching through the victim's mobile phone when she came across a text message that concerned her.  The text revealed that the two of you had engaged in a sexual relationship.  The sister confronted the victim about the relationship and the victim admitted that she and you had had sexual intercourse.  Her sister then made a complaint to the Department of Human Services about the relationship.  Thereafter, the Department referred the matter to Victoria Police. 

16The victim participated in a video‑recorded interview with police at the Wangaratta Police Station on 6 June 2013.  She detailed the allegations that form the basis of the charged acts.  She gave a further video interview on 30 July 2013 in relation to the text messages on her phone. 

17You were interviewed at the Mansfield Police Station on 24 July 2013.  You made a number of admissions during the recorded interview and cooperated fully with the police investigation. 

18You indicated that you knew that the victim was 12 years old when she arrived at the Hezel home, that the relationship had become sexual, you detailed circumstances that the first time was in the victim's room.  You said you were aware of the age gap between yourself and the victim.  You acknowledged that you and the victim touched each other whilst at Eden.  You also acknowledged that she and you had had sexual intercourse numerous times while she stayed at your home. 

19You also accepted that the intercourse would occur in the various rooms of the house - your bedroom, her bedroom, your parents' bedroom - and in the car next to the cemetery, and that you would have intercourse once or twice per week after you moved out of the family home and that on one occasion the victim attended your bungalow and you had sex and that you and the victim had oral sex, as you described it, “both ways”, occasionally. 

20You entered a plea of guilty at the earliest stage at the committal mention hearing on 4 February 2014. 

21I now turn to your personal circumstances. 

22As I noted earlier, you were aged 17 when this offending occurred and you are now aged 20 and you have no criminal record. 

23You were brought up in a close and supportive family environment and your parents cared for many children as foster parents.  You were home-schooled until 16 when you were enrolled in Year 11 at Mansfield High.  You found Year 12 difficult with stress and depression, but completed it with good results.  Thereafter you have worked at a café and seasonally at a ski hire business and mountain bike hire company.  You are now enrolled in civil engineering at Deakin University, Geelong. 

24A psychological report from Ms Pamela Matthews, forensic psychologist, was tendered on your plea.  In Ms Matthews' opinion you still present in the adolescent phase of development, that adolescents vacillate between being children and adults and the interplay of independence-seeking, peer relationships and conceptual challenges of this period can lead to risk taking without full knowledge of, or regard to, consequences.  Ms Matthews concludes that your risk of reoffending is low and you have resolved the anxiety and depressive issues which had been impacting on you in your Year 12 at school. 

25Your parents, your aunt and family friends have provided encouraging evidence of your general good character and the initiatives you have undertaken to better understand and deal with the impact of this offending. 

26The crimes of sexual penetration and indecent act with a child under 16 are serious, and in the case of penetration often result in immediate imprisonment and for a significant term.  Sexual assaults against children are, unfortunately, not uncommon in the experience of the courts and are to be deplored.  The courts are expected to protect the rights of children.  The victim in this case was only 12 at the time of the offending and you were 17.  Notwithstanding my impression that the victim was a very willing participant, you were expected to have the sense to restrain your own emotions for her because of her vulnerability at that very young age.  You were warned by your parents to be careful because your victim had indicated issues with flirting with older males. 

27There is a presumption at law that children are unable to consent because they do not have the experiences of life and the emotional and intellectual maturity to make responsible decisions about such important matters for themselves.  The experience of these courts is that there are many occasions when experiences of sexual conduct whilst children, even though apparently consensual at the time, have later resulted in much psychological damage.  Aside from a sentence to deter you from similar conduct again, a sentence must also take into account the need to deter others from engaging in similar conduct.

28In mitigation, I take into account the matters urged on your behalf by your counsel including:

-    your early plea of guilty and the fact that I regard it as genuine, that is, your remorse is genuine as indicated not only by the plea, but by the expressions of remorse that you have indicated both to the psychologist and in conversations with your parents; 

-    your good character as further expressed in the letters from your family and friends;

-    your full cooperation with the police investigation;

-    the counselling initiatives that you have already undertaken;

-    the clear evidence of your ability to maintain and develop your career opportunities by tertiary studies;

-    your remorse, as I said before, as expressed in the report of Ms Matthews; and, in particular,

-    your age at the time of the offending and now at the time of sentence, in the context that you were yourself a child at the time of offending and indeed, in your particular case, throughout the offending and continuing, still in the adolescent phase of development. 

29The basic purposes for which a court may impose a sentence are punishment, deterrence - that is, both specific to you and general to deter others - rehabilitation, denunciation by the court and the protection of the community.  In sentencing, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, its context, your personal circumstances and those of any victim.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society. 

30On balance, in the particular circumstances of this case I am persuaded that the purpose or purposes for which the sentence is imposed can be achieved by a sentence that does not involve your confinement in prison.  In my view, in light of the particular extenuating circumstances of this case a Community Correction Order would fall within the appropriate sentencing range.  I also consider that it would be inappropriate to enter a conviction.  This disposition was not opposed by the prosecution. 

31Mr Hezel, could you please now stand. 

32On Charges 1, 2 and 3 on the indictment, you are ordered without conviction to serve a Community Correction Order for a period of 12 months. 

33The Community Correction Order commences today and ends on 8 May 2015.  The corrections centre you will attend is the Geelong Community Correctional Service at Level 5, 30A Little Malop St, Geelong, and you must attend there within two clear working days after the commencement of this order; that is by 4 pm next Tuesday 13 May 2014. 

34All the mandatory terms of a Community Correction Order apply and the additional condition I impose is that you perform 100 hours of unpaid community work as directed by the regional manager. 

35I will now explain the mandatory terms of the Community Correction Order so that they are quite clear.  You will be provided with a form shortly, but I want you to understand clearly what the terms are that are mandatory.  They are these: 

-    you must not commit another offence for which you could be imprisoned during the time the order is in force;

-    you must report to and receive visits from a community corrections officer;

-    you must report to the community corrections centre, that is the Geelong Centre, within two clear working days of the order starting, and as I have already indicated, that is next Tuesday 13 May;

-    you must notify a community correction officer of any change of address or employment within two clear working days after the change;

-    you must not leave Victoria without first getting permission to do so from a community corrections officer; and

-    you must obey all lawful instructions from and directions of community corrections officers.  Such directions may be given orally or in writing. 

36Do you understand and agree to those conditions, Mr Hezel?

37OFFENDER:  Yes.

38HIS HONOUR:  Now if you get sick or if there are exceptional circumstances, the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order.  In either case, you must notify the community corrections centre and I recommend that you obtain legal advice if any of these things do happen. 

39However, I must warn you that if you breach any condition of this order, then you will be brought back before me - not to the court generally, you will be brought back before me.  One of the options open to me is to cancel the Community Corrections Order and resentence you on the original charges, and I may also deal with you for the breach by sending you to prison for up to three months. 

40So Mr Hezel, do you understand the consequences of breaching the Community Corrections Order?

41OFFENDER:  Yes.

42HIS HONOUR:  I will ask you to sign that order shortly.  You may be seated for the moment.  There are two further matters to which I also need to attend. 

43At the plea hearing the Crown sought an order for the taking of a forensic sample which you opposed, and I do not consider that order appropriate in all the circumstances of this case. 

44I note that while the offences to which you have pleaded guilty are registrable offences pursuant to the provisions of the Victorian Sex Offenders Registration Act 2004, pursuant to s.11(6) of that Act no application for a sex offender registration order was made by the prosecution. I also regard that as appropriate in the circumstances.

45Now I will have the Community Correction Order passed to you for you to read and sign.  Mr Morgan, can you take this down to the accused - - -

46MR MORGAN:  Yes, thank you, Your Honour.

47HIS HONOUR:  - - -and just make sure he understands the terms and the conditions of the Community Corrections Order, yes, and you can leave the dock for that purpose.  You can just come out to the side of the courtroom there, please. 

48Mr Hezel, you can come out of the dock from now, please, just come down and sit by your counsel.  By my order you have avoided a conviction.  A conviction is a terribly important thing to have against your name.  You do not have it, so if ever you are asked whether you have any convictions for any offences you can honestly say no.  That may apply for visa applications, applications for work and all those matters, so that is the position.  Good luck with the rest of your studies.

49OFFENDER:  Thank you.

50HIS HONOUR:  All right, you are excused now.  Mr Morgan, I need to speak to Mr Cordy about other matters on this circuit. 

51MR MORGAN:  Thank you, Your Honour. 

52HIS HONOUR:  Thank you, everybody.  By the way, Mr Morgan, that will be Exhibit 1 on the plea; the report of Pamela Matthews. 

53MR MORGAN:  Yes, thank you, Your Honour. 

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