Director of Public Prosecutions v Hoff (a pseudonym)

[2018] VCC 263

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN HOFF (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 March 2018
CASE MAY BE CITED AS:	DPP v Hoff (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 263

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	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr T. Trood	Oakleys Law

HIS HONOUR:

1Dylan Hoff[1], you have pleaded guilty to two charges of indecent assault and to three charges of indecent act with a child under 16 years.  Those crimes carry maximum penalties of five years and ten years respectively.  Four of those charges are course of conduct charges, and whilst that does not increase the maximum penalty I am certainly aware of the authority that says that the penalty will be greater because of it being a course of conduct as opposed to an isolated act.

[1] A pseudonym.

2You are 75 years of age and you have no prior convictions.  I accept that your risk of reoffending in these circumstances is low.  Your plea of guilty was made at a reasonably early opportunity and you must get the utilitarian benefit of it.  I am prepared to accept that the plea is accompanied by remorse and now perhaps at least some understanding and the disposition which I intend to impose may give you a little bit more understanding.

3You made initial admissions in a record of interview and I think I can say from the Bench it is the experience of judges down here that that is not the most common thing to occur.  You have avoided the need for a trial and saved your victims from at least that experience.

4I also take into account, as is frequently the case, that your plea of guilty has acted as a vindication of the victims.  Victims in a situation such as this are often terrified of being disbelieved, scared they will be called liars, and after a trial, terrified that a jury would think they were lying.  You have at least in this situation saved them from that experience.

5Firstly, pursuant to s.464ZF of the Crimes Act I make an order that you provide a saliva sample for DNA purposes. That order having been made I must advise you that should you refuse to provide such a sample police may use reasonable force to take it from you and you must attend at the Wonthaggi Police Station within 28 days to provide such a sample. That order is made and handed down.

6

Before I commence on the summary I note that your counsel on your behalf has apologised to the victims.  I also note that because of the nature of this offending you will be placed on the sex offenders register and I must advise you the reporting conditions will be for life, and I ask you to sign a receipt for those documents.  If you would not mind going to the dock with her,

Mr Trood or Mr Linehan, I do not mind.

7As I have said, you are now 75 years of age.  The complainants in the matter are:  Victim 1, your daughter who is now aged 46; Victim 2 a granddaughter; Victim 3, another granddaughter; Victim 4, another granddaughter; and Victim 5, a de facto granddaughter.  In other words two generations.

8Insofar as your daughter is concerned she was resided with you and her mother at Buffalo in South Gippsland in 1984.  She was around 13 years of age.  After a period of time when she turned 16 you would enter her room most mornings before school to wake her up.  You would touch her breasts over her clothing on each of those occasions.  That is Charge 1.  After you had touched her breast you would then touch her pubic region over the top of her clothing, Charge 2.  They are both course of conduct.

9Complainant No.2 is Victim 2.  She and her mother lived with you in Buffalo.  When she resided with you, you would sometimes put her to bed at night time.  On several occasions while putting her to bed you kissed her breasts and licked her nipples.  They are uncharged acts and will put what I am about to describe into context.  When she was about 14 or 15 she would often wake up with the feeling of you pulling and tugging at her pubic hair.  Whilst she was asleep you would put your hand inside her underwear and then pull at her pubic hair, causing pain and waking her up.  That gives rise to Charge 3 of indecent act again, course of conduct.

10Victim 3, hers was between the ages of 11 and 17 while working in the shop that you were running at that time.  You got money to give to her to go for lunch and you put your hand inside her top, into her bra and placed the money between her breasts.  That is Charge 4.

11Complainant No.4, Victim 4, is the same sort of thing, of putting money between her breasts and that is a course of conduct charge over an extended period of time.

12The fifth complainant Victim 5, who stayed overnight at your home.  She would stay every second weekend and she sometimes worked at your shop during that period.  When she stayed overnight you would come to her bedroom at night and touch her breasts.  She used to pretend to be asleep.  While working at your shop you would also touch and feel her breasts by placing money in between them. That again is a course of conduct charge.

13They are offences which occurred over a long period of time albeit there being a significant gap between the offending against your daughter and the offending against your granddaughters.

14The offending involves a massive breach of trust over an extended period of time.  You, by your conduct, having listened to and read the victim impact statement, have basically destroyed a family.  The victim impact statements, I think, do not need to be read out in detail.  They have been read out this morning and the contents are vivid in the minds of those in court.  Suffice to say that you have left girls with a feeling of lack of self-worth, difficulties in relationships, depression and everything that goes with post-traumatic stress disorders and the consequences of offending against them.

15I have asked a number of times that the press should come to one of these and understand from the victim impact statements the text book characteristics that such offending causes.  People seem to have the view that the offending has to be penetrative before it has these effects.  It does not.  The victim impact statement of Victim 2 is, as I say, text book as to what occurs when this sort of offending takes place.  Again, I have read that of the father and words fail me in trying to describe what you have done over such a long period of time.  None of the victim impact statements contain the retribution that sometimes is sought in these circumstances.  I think that they are all probably just bewildered that you could have done this to them but, as I have said, in the end you have pleaded guilty and saved them the trauma of a trial.

16The offending has to be regarded as serious.  It calls for the application of general and specific deterrence as well as denunciation and appropriate punishment.

17I then go to your prior history.  You are 75 and you have no priors.  As a young person you got to about 16 or 17 at school and you then joined the army.  You went to Vietnam and saw combat.  I have no reason to doubt that as a result of that combat and as a result of your experiences in Vietnam you have, and probably continue to suffer from, a form of post-traumatic stress disorder.  You, as did so many of the young men who went there, received virtually no assistance afterwards, were publicly vilified and treated as if you were criminals.

18As I indicated during the course of the plea, I have had a lot of experience as a barrister in particular, of acting for people in your circumstances and I have enormous sympathy for young men who put their lives at risk to come home to be treated like that but as I said to your counsel, that usually results in alcoholism, which you obviously have had for a long period of time.  That usually results in violence or mad behaviour.  There is no link between that experience and offending against your children and grandchildren and nor was it put that there was.

19However, at the age of 75 where you have been through that experience, which undoubtedly would have had a lasting effect on your life, you are entitled to call in aid your service of the country and I accept that that is in fact the case.  You have worked all your life and for the last ten years, you have been running an antique shop, together with a café. You could never be described as an indolent man.  It is just unfortunate the way in which you treated your lineal descendants.  It has been appalling.

20I accept that the prospects of rehabilitation and the risk of you reoffending should be good at this point in time.  You are 75 years of age and that is always a significant factor in all of this and I take all those other matters into account.

21Having heard the submissions of counsel, having heard the submissions of the Crown, and bearing in mind the very responsible attitudes of the people who you have made suffer, I propose to sentence in the following way.

22On charges 1, 2, 4, 5 and 6 a with conviction three year CCO.  The conditions of that will be supervision, 300 work hours and a recommendation that you undergo the Sex Offenders Program.  If you undergo that program I direct that hours spent doing that can be treated as work hours.

23In all the circumstances on Charge 3, that is of the course of conduct charge in regard to Victim 3 that, in my view, could not be justified by a community corrections order.  I think a term of imprisonment is inevitable but in all the circumstances it is one which I think can be justifiably fully suspended.  Accordingly, on Charge 3, which counsel will appreciate the CCO does not incorporate Charge 3 for reasons, you will be sentenced to be imprisoned for a period of 18 months.  I direct that that sentence be wholly suspended for a period of three years.

24Were you to breach it I make it very, very clear to you, were you brought back before me you would have to show exceptional circumstances why that would not be restored and could I say this to you, Mr Hoff, that in these circumstances with these victims and the number of them, those circumstances would have to be exceptional indeed.  In other words, 18 months would be the starting point.

25In this situation I believe I do not do a 6AAA because it is a suspended sentence.  Are there any other orders I need to make?

26COUNSEL:  No.

27HIS HONOUR:  Just so you understand this, the CCO is being prepared.  If you breach it you will be brought back before me.  If you breach it in any way similar to this sort of offending you will have breached the suspended sentence as well and I can tell you this.  You are going to risk dying in gaol.  Yes, all right.  Yes, that order is made.  All right, there are no other orders I need to make, gentlemen?

28COUNSEL:  No.

29HIS HONOUR:  Nothing?  No, all right.

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