Director of Public Prosecutions v Hibbert (a pseudonym)

[2022] VCC 980

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHESTER HIBBERT (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Regional Court and Melbourne
DATE OF HEARING:	29 March – 1 April 2022, 2 June 2022
DATE OF SENTENCE:	23 June 2022
CASE MAY BE CITED AS:	DPP v Hibbert (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 980

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:  Total Effective Sentence 7 years and 7 months.

Non-parole period 5 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Westlake	Ms. K. Westlake
For the Accused	Ms J. Swiney	Ms. S. Leffler

HIS HONOUR:

1Chester Hibbert[1], you have been convicted by a jury on one charge of indecent assault of a male under the age of 16 years.  The victim was your then 12-year-old son, Stewart[2].

[2] A pseudonym

2Between January 1979 and December 1980, you and your son stayed over at a rural property you owned at Worooble Creek[3], south of Moranbah[4].  On that property was a small shed.  You were in the company of family friends and sat up, drinking, when your son went to sleep in the shed.  He woke to find you rubbing your penis up and down outside his anus.  The jury were not satisfied beyond reasonable doubt that you attempted to penetrate your victim's anus but were satisfied beyond reasonable doubt that the conduct I have described occurred.

[3] A pseudonym

[4] A pseudonym

3Your son did not report your conduct to police until 2015.  When interviewed about his allegations you denied any such conduct.  At the conclusion of that trial, you pleaded guilty to a second indictment relating to numerous offences committed against your daughter, Brenda[5].  You pleaded guilty to one charge of common assault, one charge of carnal knowledge of a girl under 10 years of age, and two charges of indecent and unlawful assault of a girl under the age of 16 years.

[5] A pseudonym

4The facts of your offending are set out in Exhibit A and Exhibit A1, the outline of prosecution opening, and the addendum to that opening.  I was informed by your counsel that I could treat that document as an agreed statement of fact.  I sentence you on the basis of the facts set out therein and I incorporate that document into these reasons for sentence.

5Very briefly stated, Charge 1, common assault, relates to you striking your six-month-old daughter's leg, fracturing her femur.  She was an unsettled baby who cried a lot.  You were an angry drunk who struck her leg in frustration.  Brenda spent six weeks in hospital, underwent traction and has been left with residual pain in her leg.  This assault occurs in early 1973, some 49 years ago.

6Charge 2 is a course of conduct charge.  Between October 1976 and December 1980, you rubbed your penis over your daughter's vagina on innumerable occasions.  When you felt a sexual urge, you would, 'Get the girl'.  You would take her from her bed, remove her bedclothes and rub your penis over her vagina and within the outer lips of her vagina until you ejaculated on her stomach.  You would then wipe her and return her to bed.  You told police you did this at least once a week over the four-year period.  This charge includes identical conduct by you to your daughter at the Worooble Creek property, both in your motorcar and in the shed on that property.

7Charge 3 is a further course of conduct charge.  Between January 1978 and December 1980 at the property at Worooble Creek and at your parents' property at Woodstock you put your fingers in your daughter's vagina after removing her underwear.  On one occasion you smelt your fingers and on another put cream on her vagina, which was sore as a consequence of your conduct.

8The final charge, Charge 4, is another course of conduct charge and another indecent and unlawful assault charge.  You forced your daughter on numerous occasions to put her hand on your penis and on occasions you ejaculated on her.  This occurred at your home, at the Worooble Creek property, and at your parents' property at Woodstock between January 1978 and December 1980,

9Your daughter was born in October 1972.  Your sexual offending against her occurred when she was four to nine years of age.  You separated from your wife in 1978.  You had access to your children every second weekend and you violated your daughter when where was entrusted to your care during that access.  Both your daughter and your ex-wife made victim impact statements, Exhibit B and C.  Shirley Whitney[6], your ex-wife, suffers depression and anxiety as a result of the crimes you committed against your children.  She feels guilty of not protecting her children from you and shame for not speaking up when you broke Brenda’s leg.  Brenda feels fear and anger because of your crimes.  She suffers anxiety and depression and has required counselling and medication.  She experiences nightmares.  Your crimes have damaged her relationship with her husband.  She is over-protective of her children and she states that her childhood innocence has been taken away by the person meant to protect her.  I take the victim impact material into account in sentencing you.

[6] A pseudonym

10You have a limited criminal history.  In February 1979 you received a good behaviour bond for an unlawful assault charge.  In May 1980 you were released on probation for 12 months for offences of unlawful assault and indecent assault with a requirement that you attend the psychiatric centre at a Regional Hospital[7].  You have had no further offending in the subsequent 42 years.

[7] A pseudonym

11As discussed during your plea, I do not treat these matters as prior convictions.  You fall to be sentenced as a man without prior criminal conviction and as someone who has managed to rehabilitate himself since the horrific offending that I am to sentence you for.

12You are now 73 years of age, being born in October 1948.  Your personal history is set out in Exhibit 1, the very helpful submissions of your counsel,
Ms Swiney. You were one of six children, born to farmers near Moranbah.  You left school to join the army where you spent several years during the 1960s.  You then joined the Country Road Authority, married and had four children.  You started a spray painting and panel beating business in Moranbah.  Your marriage, as I said, had issues.  You were a heavy drinker and prone to be abusive.  You and your wife separated in 1978.  As I said before, you had access to your children for some years but that ceased.  Since then, you have lived in your home at Moranbah.  You have not remarried.

13You have some medical issues; a hip replacement saw you develop an abscess and an infection that requires ongoing treatment in 2018 and 2020.  In 2020 you had a pacemaker implanted to control atrial fibrillation and apparently you suffered a mild stroke in late 2019.  You still take five separate medications to manage those issues.

14When you were interviewed by the police on 29 June 2018 you made extensive admissions as to your offending against your daughter.  You confessed to conduct the complainant could not remember.  You admitted offending against Brenda from when she was four years of age and you expressed remorse and disgust at your conduct.  You said that you drank a lot, that you acknowledge but that was no excused for your offending.  I accept your counsel's submission that you have demonstrated genuine remorse for this offending, that is your offending against Brenda, and I take your cooperation with police and the admissions you made to them into account in sentencing you.

15I also take into account your pleas of guilty insofar as the offences against your daughter are concerned.  Not only do those pleas of guilty demonstrate genuine remorse but, significantly, they have spared your victim and other witnesses the trauma of giving evidence at a trial.  You are entitled to a significant reduction in sentence to reflect those pleas of guilty.  Those pleas have even greater value given the effect of COVID-19 on our justice system.  The course of justice has been greatly assisted by your pleas of guilty in circumstances where the system has been struggling to cope with the stresses COVID imposes.  I am obliged to state the effect of the reduction in sentence and I will return to that subsequently.

16COVID also makes your time in custody more onerous for you.  Lockdowns, loss of visits, loss of courses, are all caused by COVID and I take that into account in sentencing you.

17Your medical condition will make your time in custody more onerous for you.  You are somewhat frail and have underlying health issues and the health care regime you had in place in Moranbah to manage your conditions has been disrupted.  Your counsel properly conceded that you will face a significant gaol sentence for your offending.  Nothing other than a substantial term of imprisonment is appropriate for that offending.  I must give effect to principles of general deterrence, express the community's denunciation of your conduct and impose just punishment for your crimes.

18I recognise the substantial rehabilitation you have demonstrated over the past 40 years and accept that the sentence I impose will take up much of your remaining life.  So far as your offending against your son is concerned, I am required to recognise in the sentence I am about to impose the criminality of your conduct towards him, that is there must be some component of the sentence I am about to impose that includes time for your offence against Stewart.

19It is difficult to adequately describe your offending.  Words cannot adequately describe the depravity and the dreadful nature of your conduct.  Your personal sexual gratification at the expense of your very young daughter was atrocious.  She was entitled to love and protection but received gross personal abuse from an evil father.  You did not admit your offending against your son.  You abused him again to satisfy your base sexual urges.  He too was entitled to your protection, not your perverted abuse.

20The Court of Appeal of this state has often emphasised the need for society to protect its children.  I am required to impose a sentence upon you that will make it clear to others that offending such as yours will be severely punished.  The maximum penalties for each of the offences demonstrate how seriously parliament views conduct such as yours.  Because I propose to sentence you to a term of imprisonment on all charges, you fall to be sentenced as a serious sexual offender in respect of Charge 4 against your daughter and the one charge against your son, I am required to regard protection of the community from you as the primary sentencing consideration for those charges.  Because of the length of time since you offended and because or your age and health issues, I do not need to impose a disproportionate sentence to protect the community.  The community can be adequately protected by the sentence otherwise available to this court.  I do, however, direct that it be recorded in the records of the court that you have been sentenced as a serious sexual offender on Charge 4 on Indictment K1279738B, and Charge 4 on Indictment K12797832A.

21Would you stand up, please, if you can?  Can you stand up?  The sentences of the court are:  on Indictment K1279738B on Charge 1, the charge of common assault, you are sentenced to be imprisoned for six months; on Charge 2, carnal knowledge of a girl under 10, the course of conduct charge, six years' imprisonment; on Charge 3, indecent assault, the continuing course of conduct charge, 18 months' imprisonment; and similarly Charge 4, the indecent assault course of conduct charge, 18 months' imprisonment.

22Having regard to principles of totality and cumulation, I order that three months of the sentence imposed on Charge 1 and six months of each of the sentences imposed on Charges 3 and 4 be served cumulatively upon the sentence of Charge 2, which I declare to be the base sentence.  That is an effective term of imprisonment of seven years and three months on that indictment.

23On Indictment K1797382A on Charge 4, the only charge on that indictment for which you are convicted, you are sentenced to be imprisoned for nine months.  I order that four months of that sentence be served cumulatively upon the sentence imposed on Indictment K12797382B.  That is a total effective sentence of seven years and seven months and I order that you serve five years of that sentence before being eligible for parole.

24How many days of PSD do I have; does anyone know?

25MS SWINEY:  Maybe three I believe, Your Honour.

26HIS HONOUR:  Is that agreed?

27MS WESTLAKE:  That's agreed, Your Honour.

28HIS HONOUR:  Yes, thank you.  I declare that 83 days of the sentence I have just imposed has already been served by way of pre-sentence detention.  Pursuant to the Sex Offenders Registration Act you are required to report for life.  I will have a copy of the requirements under that Act made available to you and ask that you sign the acknowledgment that you have received that document.  That will occur through the prison system, I think.

29Pursuant to s6AAA of the Sentencing Act I declare that but for your pleas of guilty on Indictment K12797382B,  the offences against your daughter, I would have imposed an effective term of imprisonment of 11 years with a non-parole period of eight.  Are there any more orders required?

30MS WESTLAKE:  No, Your Honour.

31HIS HONOUR:  No.  Thanks, Ms Swiney.  Do you want to talk to him?

32MS SWINEY:  Just to say, Chester, I will organise a video conference with you so we can discuss it, all right?

33HIS HONOUR:  All right, terminate the link.

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