Director of Public Prosecutions v Hindley (a pseudonym)
[2016] VCC 1796
•17 November 2016
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAM HINDLEY (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 September 2016 | |
DATE OF SENTENCE: | 17 November 2016 | |
CASE MAY BE CITED AS: | DPP v Hindley (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1796 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – maintaining a sexual relationship with a child under 16 years – historical offending - significant subsequent criminal history for similar sexual offending – currently undergoing a term of imprisonment in respect to earlier sexual offending – principle of totality – further term of imprisonment imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Piggott | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms L Mendicino | Victoria Legal Aid (Geelong) |
HER HONOUR:
1 Sam Hindley[1], you have pleaded guilty before me on indictment to one charge of maintaining a sexual relationship with a child under 16 years between the dates 6 January 1998 and 31 October 2001. The charge encompasses nine occasions and 10 acts where you were sexually abusive to the victim, your second cousin, Angus Pollak.[2]
[1] Sam Hindley is a pseudonym.
[2] Angus Pollak is a pseudonym.
2 You and the victim are second cousins, as I have said. The victim’s grandmother and your mother are sisters.
3 I shall now proceed to sentence you on the basis of the Summary of Prosecution Opening that was read to the court at the plea hearing and tendered on the plea.
4 The 10 acts comprise three acts of you masturbating the victim; one act where you procured the victim to masturbate you; two acts of you playing with the victim’s penis and four acts of you placing your mouth over the victim’s penis.
5 The victim was aged between seven and eleven at the time of the offending and is now 24. You were aged between 24 and 28 at the time of the offending and you are now aged 43.
6 You commenced babysitting the victim when he was seven, sometime after 6 January 1998. He would often sleep over and you sexually assaulted him in the manner that is described in the prosecution opening. I note the first occasion involved you taking him to a friend’s home for the weekend where you played adult pornographic movies and you then masturbated his penis whilst he was on a fold-out couch in the lounge room.
7 I do not propose to set out in detail the further particulars of your offending. They are referred to in the Crown opening and I shall attach, as Appendix A, in my formal sentencing remarks, the Crown opening.
8 The gravity of your offending is very serious and that is reflected in the maximum penalty that is prescribed by law: Level 2 imprisonment, 25 years.
9 Further, your offending was a gross breach of trust. When you were offending, you were entrusted with the care of your young second cousin, who was a person of tender years. The offending took place over a prolonged period: almost four years and included four acts of oral penetration. I have taken into account the nature of the offending, the fact that it was not isolated conduct, but a continuing course of conduct that took place over a number of years and I have also had regard to the age discrepancy at the time.
10 The offending warrants serious denunciation. General and specific deterrence are of paramount importance.
11 When this offending occurred, you did not have any criminal convictions. You do, however, have significant subsequent criminal convictions involving other acts of sexual offending on young prepubescent males. You do not have a formal history of non-sexual offending.
12 I will turn now to the subsequent offending.
13 In 2004 you were sentenced by his Honour Judge Duckett.
14 At that time, you were 30 and had no prior convictions or appearances before the court.
15 He sentenced you to a total term of imprisonment of five years and nine months, to serve four years prior to being eligible for parole, in respect to five charges of indecent act with a child under 16, 10 charges of sexual penetration of a child under 10, one charge of attempted sexual penetration of a child under 10, one charge of production of child pornography and one charge of possession of child pornography.
16 That offending was committed between 1 April 1998 and 1 April 2002, which approximates the timeframe of this current offending.
17 There were two male victims who were under the age of 10 at the time of the offending. One victim was five and he was a member of a family that provided you with accommodation when you had moved to Melbourne from Kyabram. The offending involved you fondling his penis outside his clothing, sucking his penis and on one occasion you forced the victim to take your penis into his mouth and made him suck your penis.
18 The other victim was under 10 and he, too, was a second cousin. That offending occurred when you were living with his maternal grandmother and you were sharing a bedroom with the victim. It involved you sucking his penis and rubbing his genitals with your genitals and forcing him to suck your penis on occasion. There were child pornography charges involving you taking a picture of one of the victims naked and you had in your possession other images of boys posing naked that were found on your computer when you were arrested.
19 You were released from that sentence on parole in February 2008 and completed parole.
20 Thereafter, his Honour Judge Parsons sentenced you on 15 May 2013, following a plea of guilty entered in respect to two indictments – the first indictment contained two charges of an indecent act with a child under 16, committed at Shepparton on 19 August 2012 and the second indictment related to breaches of your reporting obligations under the Sex Offenders Registration Act 2004, that I will refer to as SORA.
21 The two charges of indecent act with a child under 16 concerned offending that involved a 12 year old male. He was found present with you when you were arrested. You were both watching pornography on your laptop computer and whilst watching that pornography, you were clutching the child’s penis over his clothing.
22 The breach of your reporting requirements under SORA related to you failing to report that three children had been regularly visiting you at your home with unsupervised contact on more than three occasions. There was also a separate matter of failing to report change of employment details.
23 You made various admissions to the police when you were formally interviewed.
24 Following a plea hearing, Judge Parsons sentenced you to a total of five years and four months’ imprisonment, with a non-parole period fixed of three years and six months, with 241 days reckoned as being time served.
25 You are currently undergoing that sentence at Ararat prison and the non- parole period has now lapsed. The sentence expires on 4 January 2018.
26 Whilst undergoing your sentence, the complainant in the present indictment contacted the police and made a formal complaint on 26 August 2015. That occurred in the context of a failed suicide attempt. The complainant had made an attempt at suicide through the ingestion of medication. When he woke the next day he telephoned his mother and told her that you had been sexually assaulting him for three years. This was the first occasion he told anyone about your offending.
27 A formal police statement was taken on 1 September 2015 and an additional statement was made on 17 March 2016.
28 Police were able to access and listen to a number of prison telephone calls between you and family members between 30 August 2015 and 14 September 2015. During one conversation recorded on 30 August 2015, your sister informed you about the complaint that had been made to the police by the victim and said that the whole family was upset. You informed your sister that you would not be making any excuses for the offending. You admitted the offending. Later that day, you were informed the victim had attempted suicide and you acknowledged that you had offended against him.
29 You were formally interviewed on 22 September 2015 and mostly made a “no comment” record of interview. You were charged on 13 January 2016. At the third committal mention on 22 June 2016, the matter resolved and a plea of guilty was entered in respect to the charge before the court.
30 As a result of your criminal history, you stand to be sentenced as a serious sexual offender. Therefore, upon sentencing, it must be caused to be entered into the records of the court, in respect of this offence, the fact that you were sentenced as a serious sexual offender.[3]
[3]Sentencing Act 1991, s6F(1).
31 In determining the length of the term of the sentence to be imposed when sentencing a serious offender, the court must have regard to the protection of the community from the offender as the principle purpose for which the sentence is imposed and may, in order to achieve that purpose, impose a longer sentence than that which is proportionate to the gravity of the offence.[4]
[4]Ibid, s6D.
32 In these circumstances, the Crown have not sought a disproportionate sentence and a disproportionate sentence will not be imposed.
33 Further, there is a presumption, in cases of this nature, that every sentence imposed on a serious offender for a relevant offence will be served cumulatively on any uncompleted sentence that you are serving, unless otherwise directed by the court.[5]
[5]Ibid, s6E.
34 Your offending has had a profound effect on your victim and I have had regard to what he said in his Victim Impact Statement that was declared on 16 September 2016.
35 He expresses his feelings about having lost the opportunity to live a normal, healthy life – almost 20 years of it – because of your abuse. He has carried the knowledge of what happened with him over many years and it has affected his behaviour. He did not deal very well with the trauma and found school difficult. He did not finish his high school education. He suffers anxiety in social situations and has difficulty in establishing relationships with people, both socially and through work. He has difficulties with trust issues and his sleep patterns have been affected. He describes feelings of anger, anxiety, fear, sadness, loneliness and shame as a consequence of your abuse. He has experienced suicidal ideation. He says that he knows he is trauma-affected and he is still trying to work out what that means for his life and his future and I have taken those remarks into account and the impact of your offending on him.
36 I have had regard to your background and history. As I stated earlier, you are 43, you are single and you are currently in Ararat Prison undergoing sentence.
37 You were raised by caring parents in regional Victoria and you have a younger sister. You continue to enjoy a close relationship with both your mother and sister. You have a 21 year old niece who is very close to you and she regularly visits you whilst you are in jail. Your father is deceased. He died when you were about 31 and you were in custody.
38 You lived with your parents until you were about 22 and then moved to Kyabram to live with friends and at age 25 you moved to Melbourne. When you were 28, the offending for which you were sentenced in 2004 was identified. You were interviewed by police whilst still living in Melbourne and then you moved back to live with your parents in the country.
39 When you were released from prison on parole in February 2008, you then purchased a home in Kyabram in about 2009, with your mother as co-owner. You sold that house in 2011 and purchased another nearby property. That property was repossessed by the bank in 2013.
40 In 2012 you were interviewed by the police regarding the offending for which you were sentenced by His Honour Judge Parsons on 15 May 2013. You were remanded in custody in August 2012 when aged 39 and have been in custody continuously since then.
41 You recently disclosed that you were the victim of sexual abuse when you were aged nine by an older male cousin. You report that you had not found the two reported sexual encounters as being particularly traumatic and that you became sexually active from about age 11. You identify as being bisexual. You had your first relationship with a woman when you were 21. Sadly, she subsequently died in a car accident whilst you were in custody. She had three children and you were engage to be married. That relationship was described as very loving and supportive and you have suffered a grief reaction and depression following her death. You had another relationship with a female when you were aged 37, commencing in 2010 and ended in 2012. That too was a positive relationship that ended before you were incarcerated.
42 You have had little formal education, completing Year 10 at Kyabram High School. You did go on to complete an apprenticeship as a motor mechanic in 1994 and you have a Certificate IV in Workplace Training and Assessment that you obtained in 2000.
43 You have a good work history that reflects a strong work ethic. You were gainfully employed from the time you left school, until your incarceration. You have a forklift licence, motorcycle and motor car licence and a heavy combination truck licence. There is no history of alcohol or drug abuse.
44 In sentencing you, you must be sentenced on the basis that you did not have any prior convictions, although the court must have regard to the relevant subsequent convictions to which I have earlier referred. Of significance, the offence for which you were sentenced by His Honour Judge Duckett on 2 March 2004. That offending took place during approximately the same timeframe as the current offending and was offending of a similar nature.
45 You acknowledge the objective gravity of your offending through your counsel and the fact that it involved a significant breach of trust. It is accepted the offending occurred over a prolonged period of some four years and it is also acknowledged that the effect of the offending has had a detrimental effect on the victim.
46 I have had regard to the expressed opinion of Dr Aaron Cunningham, the forensic psychologist, whose report of 12 August 2016 sets out his opinion concerning your offending. He notes that you do not present with a mental illness. He does acknowledge you were exposed to significant disruption in your childhood, in that you were sexually abused at age nine and then thereafter you have engaged in consensual sexual behaviour from age 11 with other boys.
47 His opinion is, you formed a neural association between sexual arousal and males within a certain age range and that led to a sexual drive and preferences for males. It did not appear your sexual preference were for prepubescent children alone. However, your experiences of sexual behaviour as a child normalised the experience of sexual interaction at a young age. Until recently, you had difficulty empathising with the distress of your victims. Dr Cunningham recommends ongoing and specific treatment to address your deviant sexual drives.
48 Dr Cunningham's opinion does provide some possible explanation for your behaviour, involving the offending concerning this victim. It in no way excuses your behaviour and I am satisfied that you knew, at all times, what you were doing was wrong and that therefore your moral culpability is high.
49 He identified protective factors which may reduce your risk of re-offending and improve your prospects for rehabilitation, including your supportive family, your ability to maintain stable accommodation, your expressed remorse and your motivation to engage in treatment services. He recommended sex offender treatment. He acknowledged that you were open to engaging with this treatment and adhering to court requirements.
50 I have had regard to the protective factors identified by Dr Cunningham that may reduce your risk of reoffending and improve your prospects of rehabilitation, including your supportive family, your ability to maintain stable accommodation, your expressed remorse and your motivation to engage in treatment services. He acknowledged that you were open to engaging with sex offender treatment and to adhering to court requirements.
51 Dr Ria Zergiotis, the consultant psychiatrist from the Victorian Institute of Forensic Mental Health, in her report dated 17 November 2016, expressed the opinion that you meet the criteria for paedophilic disorder under DSM-V criteria, in that you demonstrate recurrent sexual urges and behaviours including sexual activity with prepubescent children. She says it is likely that you will continue to present with a high risk of sexual re-offending in a similar manner involving prepubescent males and you have a high risk rating from past structured risk assessment tools.
52 She too acknowledged the protective factors that have been identified by Dr Cunningham and added additional factors, namely the times when you were in intimate heterosexual relationships and community engagement.
53 She agrees that you require ongoing specialised treatment to address your paedophilic disorder and to re-evaluate a risk of future re-offending. Your rehabilitation should include individual and offence-specific psychological therapy and she also recommends your mental health should be monitored.
54 Overall, your prognosis in regards to recidivism, that is, repeat offending, should be guarded and your overall rehabilitation prospects are of some concern, given your forensic history. I agree wholeheartedly with her expressed opinion. She recommends a high level of supervision and monitoring in the community at any point of future release from prison to protect the community from further offending.
55 In sentencing you, I have had regard to the various matters raised on your behalf by Ms Mendicino in mitigation. I accept that you entered a plea of guilty at the committal case conference and that the plea was entered at the earliest possible stage. There is real utility in your plea. You have spared the expense and inconvenience of a trial, but importantly, you have avoided further trauma to the complainant by him not having to give evidence on your trial. You have facilitated the course of justice and the sentence will be discounted accordingly.
56 I accept further, you have demonstrated appropriate remorse for your conduct through your plea and I have also had regard to the content of the prison telephone calls. I consider the expressed remorse is genuine.
57 I have had regard to the delay being 14 years and the delay being brought about as a consequence of the victim not reporting the matter until 2015. The fact that there has been a delay is noted. Its effect, however, is somewhat reduced in the circumstances of this case, where there has been other sexual offending and there was no real evidence of any rehabilitation addressed at your underlying offending behaviour.
58 However, I noted that you did participate in the sex offenders program between '07 and '08, whilst you were in prison. I noted that your expressed comment to Dr Ria Zergiotis, that you did it for parole. I noted also that you also recently participated in the sex offenders program whilst undergoing sentence until it was withdrawn when the further offending, the subject of this charge, came to light. You have completed approximately 35 out of 50 planned sessions and you participated in the program between June 2015 and February 2016. I noted your comments to the psychiatrist, Dr Zergiotis, that it was different this time, in that you reflected on the content of your life and that you were there for a different reason.
59 It is important for the future that the authorities have regard to the expressed opinions of both Dr Aaron Cunningham and also Dr Zergiotis, in terms of your future management, given that you present with a high risk of sexual reoffending in a similar manner, involving prepubescent males.
60 It is imperative that you undergo individual and offence-specific psychological therapy to address your offending behaviour and also to enable the community to be protected from further offending.
61 In sentencing you, I must emphasise both general and specific deterrence. In the particular circumstances of this case, the protection of the community also looms large. When I speak about general and specific deterrence, that means by this sentence I must try and deter you and others from committing serious sexual offences against children. As I indicated earlier, it is imperative that the authorities take steps to ensure that you obtain appropriate treatment whilst you were in custody and upon your eventual release, so as to optimise your rehabilitation prospects.
62 Absent such treatment, I consider that your risk of re-offending is very high and I can only be guarded about your potential rehabilitation prospects.
63 I have had regard to the decision in DPP v DDJ[6] and Cummings v R[7] in respect to current sentencing practices for this offence.
[6](2009) 22 VR 444.
[7][2013] VSCA 352.
64 Overall, I consider a term of imprisonment is the only sentence available to the court. I have noted the Crown have not sought the disproportionate sentence and I do not intend to impose one. It is necessary for the sentence I impose this day to be cumulative upon the sentence you are undergoing, unless I otherwise order, because of your status as a serious offender and in the circumstances of this case, I shall do so.
65 I have had regard to the principle of totality. I bear in mind that the scope for the principle of totality is limited by law relating to sentences imposed on serious sexual offenders.[8] Nonetheless, I have still considered the need for today’s sentence to reflect the totality of your offending.
[8]R H McL v R (2000) 174 ALR 1 [76].
66 Finally, the court must impose a just sentence and one that reflects the community’s abhorrence for sexual violence, particularly against children.
67 Could you please stand now, Mr Hindley?
68 The formal court order in respect to the one charge on the indictment of maintaining a sexual relationship with a children under 16, you will be convicted and sentenced to a term of imprisonment of three years and six months and I direct that you serve two year' imprisonment, before being eligible for parole. I direct that one year of such sentence is cumulative upon the sentence imposed by His Honour Judge Parsons on 3 May 2013.
69 I make the following declaration pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty I would have imposed a five year sentence to serve three years with the same order for cumulation.
70 Section 6D of the Sentencing Act direction: it is to be noted in the court's records that you were sentenced for this charge as a serious offender. I believe that covers everything?
71 MS MENDICINO: As Your Honour pleases.
72 HER HONOUR: Ms Piggott?
73 MS PIGGOTT: Yes Your Honour, thank you.
74 HER HONOUR: Yes, all right. Thank you for that. We can ask Mr Hindley to leave. Thank you for your assistance and Ms Piggott, I'd just ask that you explain to Mr Pollak now what the sentence means.
75 MS PIGGOTT: I shall, Your Honour. I've got plenty of time to do that. Thank you.
76 HER HONOUR: Yes. Thank you and thank you Mr Pollak, for being here.
- - -
APPENDIX A
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL JURISDICTION
THE DIRECTOR OF PUBLIC PROSECUTIONS
-v-
Sam Hindley
Date of document: 9 September 2016
Filed on behalf of: The Director of Public Prosecutions
Prepared by: Solicitor’s Code: 7539
JOHN CAIN Telephone: (03) 9603 7666
Solicitor for Public Prosecutions Direct: (03) 9603 2568
565 Lonsdale Street Reference: 1600511/B.Goding
Melbourne Vic 3000
SUMMARY OF PROSECUTION OPENING & CHRONOLOGY
Background:
The accused Sam HINDLEY pleads guilty to one charge of Maintaining a Sexual Relationship with a Child Under 16 between 6 January 1998 and 31 October 2001. The charge encompasses nine occasions in which the accused sexually abused the victim Angus POLLAK.
The offending comprises of ten acts:
a. Three acts of the accused masturbating the victim.
b. One act where the accused procured the victim to masturbate the accused.
c. Two acts of the accused playing with the victim’s penis.
d. Four acts of the accused placing his mouth over the victim’s penis.
The victim and the accused are second cousins.
The victim was aged between 7 and 11 at the time of the offending. He is now aged 24.
The accused was aged between 24 and 28 at the time of the offending. He is now aged 43.
The accused commenced babysitting the victim when he was 7 years old; sometime after 6 January 1998. The complainant would often sleep at the accused’s house over the weekend.
Offending:
House (address unknown) in Frankston
7. On one occasion between 6 January 1998 and 18 October 1998, the accused took the victim to a friend’s house in Frankston for the weekend.
Accused masturbated victim’s penis (first occasion)
8. The accused played adult pornographic movies over the weekend. Towards the end of the weekend, the accused masturbated the victim’s penis whilst on the fold-out couch in the lounge room. The victim kept running to the toilet, thinking he needed to urinate. The accused told him he did not need to go to the toilet.
Sunshine
9. On 19 October 1998, the accused moved to Sunshine. The victim’s father Sean Pollak[9] had previously lived there. The accused bought the victim Playstation games and kept them at his house for the victim to play.
[9] Sean Pollak is a pseudonym.
Accused procured victim to masturbate accused’s penis (second occasion)
10. On a date between 19 October 1998 and 31 August 1999, the accused made the victim masturbate the accused’s penis. This occurred in the accused’s bedroom.
Accused placed victim’s penis in accused mouth (third occasion)
11. On a date between 19 October 1998 and 31 August 1999, the accused was showering with the victim. The accused placed the victim’s penis in his mouth whilst they were showering.
Sunshine (different address)
12. On or about 31 August 1999, the accused moved to (a different address in) Sunshine to live with his Erin Lasseter.[10]
[10] Erin Lasseter is a pseudonym.
Accused masturbated victim and placed victim’s penis in accused mouth (fourth occasion)
The accused organised a birthday party for the victim at this house for the victim’s eighth or ninth birthday. The victim invited three friends. Two of his friends were able to attend. One of his friends stayed over the night. They all slept in the accused’s bed.
The victim’s friend went home at around midday. After this, the accused took the victim to the accused’s bedroom and masturbated the victim’s penis and put the victim’s penis in his mouth. This went on for twenty to thirty minutes.
Accused played with victim’s penis (fifth occasion)
15. One day between 31 August 1999 and 17 April 2000, the accused looked after the victim after he finished school on a Friday afternoon. Erin Lasseter was also at home with her girlfriend on this evening. Later in the evening, Erin Lasseter and her girlfriend went out. The accused watched the movie called “Mummy Market” with the victim. The accused was lying on the couch naked and continuously played with the victim’s penis. After the movie finished, the accused and the victim went to bed together in the accused’s bed.
Accused placed mouth around victim’s penis (sixth occasion)
16. The following morning, the victim woke up and the accused placed his mouth around the victim’s penis. The accused stopped when he heard Erin Lasseter entering the house through the front door.
Rockbank
17. On 17 April 2000, the accused moved to Rockbank. He lived in a caravan.
Accused placed mouth on victim’s penis (seventh occasion)
18. Between 17 April 2000 and 31 December 2000, the victim was at a friend’s birthday party in Rockbank. It was a slumber party so the victim stayed the night. The accused picked up the victim the next morning and took him back to his caravan.
19. They watched the football in the evening. Collingwood was playing. The accused placed his mouth on the victim’s penis. The victim then fell asleep on the couch. When he awoke he was in the accused’s bed.
Accused played with victim’s penis (eighth occasion)
20. On a day between 17 April 2000 and 31 December 2000, the accused took the victim to a function organised by the Rockbank Fire Brigade at Pizza Hut in Sunshine. There was a call for the fire brigade to attend to a fire in a paddock in Caroline Springs. The victim went to the fire in the accused’s car. There were other people in the car. When they got there, there were no fire trucks at the scene. They stayed there for five minutes and watched the fire extinguish. After that, they went go-karting at Fun City on Ballarat Road Sunshine.
21. The victim went back to the accused’s caravan that evening. When they went to bed, the victim did not have any clothes on. He was tired. He let the accused play with his penis until he fell asleep.
House (address unknown) in Springvale
22. In January 2001, the accused moved to an address in Springvale. He lived there with his partner at the time; and her two children aged four and six. He moved to Glen Waverley in July 2001, and then moved back to Springvale in October 2001.
Accused masturbated victim (ninth occasion)
23. On the Sunday morning of a day between January 2001 and October 2001, the accused picked up the victim from football in Sunshine North. The accused had two other children with him who were the children of his girlfriend at the time. These children were aged 4 and 6 at the time. The accused took the victim and these children to McDonald’s before going home.
24. When they got home, the two children had an afternoon nap. The accused then took the victim to his bedroom. He placed the victim on his knees facing away from the accused. The accused told him it was a different way of doing it and it would feel different. The accused then masturbated the victim’s penis.
Timing of Complaint:
25. On 24 August 2015 the complainant took a 14x 5mg diazepam tablets and about 30 paracetamol tablets with a quarter of a bottle of vodka and a half bottle of cough syrup, in an attempt to “feel nothing”.
26. When the complainant awoke the following morning he telephoned his mother Madeleine Jones[11] and told her that the accused had sexually assaulted him “for about three years”. When she asked whether there was penetration involved, the complainant replied, “yes”. This was the first time he had told anyone about the accused’s offending.
[11] Madeleine Jones is a pseudonym.
27. On 26 August 2015, the complainant made a report to the police.
28. The complainant made his statement on 1 September 2015.
29. An additional statement was made on 17 March 2016.
Prison calls:
30. The accused was in custody at the time the initial complaint was made to police.
31. The informant listened to a number of phone calls between the accused and his family between 30 August 2015 and 14 September 2015.
30 August 2015 8.34am: Conversation with sister Abby Hindley[12]
[12] Abby Hindley is a pseudonym.
32. Ms. Hindley told the accused the complainant had made a statement to police and that the whole family was upset.
33. She told him:
“…we’re feeling hurt, we’re feeling like you know, we’ve – we’ve done everything we possibly can… to help you… and we feel like we’ve just been stabbed, we feel betrayed from you now because….we feel like you’ve just lied to us about – we don’t know what to believe now Sam, it’s really hard.”
34. The accused replied: “There’s a part of me that wants to make excuses for it but I’m not going to.”
35. Ms Hindley told him he needed help, to which the accused replied: “… that’s what I’m doing at the moment. I’m going to programs, and everything…” She replied: “… if you can admit that to yourself and if you can admit that to us, I think that would help us.”
36. During the course of the phone call, the accused said: “The only way it’s not gunna go through court is if I admit it, which I will…. Because I’m not dragging it through the court either.”
37. August 2015 at 10.03am: Conversation with mother Zoe Hindley[13]
[13] Zoe Hindley is a pseudonym.
38. His mother told him that the victim had attempted suicide. She said: “We feel sorry for Angus.” The accused replied: “Very much.”
39. He later says:
“It feels like a weight lifted… Cause he’s the one that got away… He’s the one that hasn’t said nothin’… But it’s gone that next step of him trying to commit suicide… and that hasn’t happened before, and that probably what’s hit me the hardest.”
He told his mum he would see his Senior Clinician about it and seek legal advice.
7 and 14 September 2015: further phone calls with his mother
40. Much of the discussion is about the therapy the accused is undergoing. The accused told his mother he had spoken to his Senior Clinician about it and talked about the offending in group therapy and described it as very emotional.
Arrest and interview:
41. The accused was interviewed on 22 September 2015. He made a mostly no comment record of interview.
42. He was charged on 13 January 2016.
Victim Impact Statement:
43. To be advised.
Serious Sexual Offender (Part 2A Sentencing Act):
44. As a result of the accused’s criminal history he stands to be sentenced as a Serious Sexual Offender, and a court that sentences him for a relevant offence must, at the time of doing so, cause to be entered in the records of the court in respect of that offence the fact that the offender was sentenced for it as a serious offender.[14]
[14] Sentencing Act 1991, s.6F (1)
45. In sentencing a serious offender to a term of imprisonment, the Court in determining the length of that sentence must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed and may in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence.[15]
[15] Ibid, s.6D
46. There is a presumption that every sentence imposed on a serious offender for a relevant offence will be served cumulatively on any uncompleted sentence the accused is serving, unless otherwise directed by the court.[16]
[16] Ibid, s.6E
Pre-sentence detention:
47. There is no pre-sentence detention for the purposes of s.18 of the Sentencing Act applicable to this offending.
Forensic Sample Orders:
48. The accused is already on the DNA database and no further order is required.
Sex Offenders Registration Act 2004:
49. The accused is already a registered offender with reporting obligations for life; no further order is required.
Maximum Penalties:
50. Maintain a Sexual Relationship with a Child Under 16 – Level 2 Imprisonment – 25 years.
CHRONOLOGY
6 January 1998 – 31 October 2001 Period of offending
3 May 2013 Accused sentenced in County Court
For sexual offences against children
5 years 4 months
NPP 3 years 6 months
241 days reckoned as served
26 August 2015 Complaint made to police
22 September 2015 Accused Interviewed
13 January 2016 Accused charged
5 February 2016 Filing Hearing
17 March 2016 Committal Mention
Adjourned for further discussions
26 May 2016 Committal Mention (2)
Adjourned for finalisation of factual
basis of plea.
22 June 2016 Committal mention (3)
Resolved and Committed for plea
16 September 2016 County Court Plea
……………………………………..
Simon Zebrowski
Prosecutor
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