Director of Public Prosecutions v Hollans (a pseudonym)

[2017] VCC 1701

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

COLTON HOLLANS (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	17 November 2017
CASE MAY BE CITED AS:	DPP v Hollans (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 1701

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 P. Triandos	The Office of Public Prosecutions
For the Accused	Mr A. Marshall	Oakleys Law

HIS HONOUR: 

1Colton Hollans[1], you have pleaded guilty to three charges of indecent assault and one charge of gross indecency.  Those crimes carry maximum penalties of five years and three years respectively.

[1] A pseudonym.

2Charge 1 of indecent assault is a course of conduct charge and I have read the authority shown to me by counsel for the prosecution.  I understand the circumstances of how these charges are to be regarded.

3You are now 70 years of age.  You pleaded guilty at the earliest reasonable opportunity.  You have expressed appropriate remorse and you must get the utilitarian benefit of that plea of guilty.  You have no prior convictions.  The principles of Verdins are not attracted in this case.  There is nothing about your health which is of special significance.

4Firstly because of the sentence which I am to impose on Charge 1, you will be sentenced on Charges 2, 3 and 4 as a serious sexual offender.  I am aware that community protection becomes a principal sentencing purpose, that the sentences are to be cumulative unless otherwise ordered and that a disproportionate sentence can be given.  The Crown did not ask for a disproportionate sentence and I would not give one in any event because of the factors I have indicated, there being the one victim and for reasons of totality, I will be ordering cumulation in part.  I will be expressing it in terms of cumulation because it is easier to interpret.

5Also because of the nature of the offending, you will be placed on the Sex Offenders Register and I advise you that the reporting conditions on that Register will be for life.  Take that down to him.  Now if you can go with my associate please, Mr Marshall.  Go with her.

6MR MARSHALL:  Certainly.

7HIS HONOUR:  Yes, thanks, Mr Marshall.

8The Crown opening has been tendered as an exhibit and I do the summary of offending from that.  The offending occurs against your daughter between 1986 and 1990.  At the time of the offending, you were aged between 39 and 43 years.  She is currently 40 years of age and was aged between 9 and 12 years at the time of it.  At that time, the family unit consisted of yourself, your wife, the victim and her brother, who was three years younger.  You lived in various places including along the Bass Coast.

9The circumstances of the offending are that from a young age, you almost always put the victim to bed.  You would massage or stroke her back as part of the bedtime routine.  In 1984, you moved to a new house and joined a different church.  The family lived at that place from her age of seven until she was 16.  You put her to bed most nights during her childhood.  Between 1986 and 1989, you stroked or massaged her back under her clothing every time you put her to bed.  She would lie on her stomach during the stroking or massaging.  Almost every time you massaged her, you would then roll her over onto her back and rest your hand on her vagina under her clothing.  Your fingers would touch the lips of her vagina.  The occurred most nights during that period.  That of course is a course of conduct charge on any calculation.  It has to have involved hundreds of occasions.

10After the family moved to the new house, you started having showers with the victim.  You explained to her how men got excited and the penis went from soft to hard by touching.  You rubbed your penis in front of her to make it hard to demonstrate.  You asked her to wash your body and to hug you in the shower.  She remembers showering with you on four separate occasions between 86 and 89.  On one occasion during this time, you folded your penis in half when it was soft and then rubbed it till it was hard.  You explained to her that you could not fold it in half now because it was hard.  This is Charge 2 of gross indecency.

11Sometime during 1988, she watched The NeverEnding Story at school and started having nightmares after that.  On one particular night, she remembers waking up and you putting her back to bed.  You rolled her onto her stomach and started stroking her back like you usually did.  You were stroking her underneath her nightie and she was wearing netball pants.  You rubbed the outside of the knickers and then slid your hand inside the knickers and you moved your hand around on her vagina.  She recalls that you moaned and ejaculated onto the bed.  You then left quickly and she saw a wet patch on the bed.  This is Charge 3 of indecent assault.

12During the Christmas holidays in 1989, the family all went to a town along the Murray River.  You and your wife slept in a caravan and the complainant slept in a tent inside the annex of that caravan.  There was a double blow-up mattress in the tent.  One morning you came into the tent and laid down beside her.  She was sleeping in a sheet as it was too hot for a sleeping bag.  You started rubbing her buttocks and then put your hand under her nightie inside the top of her undies.  You then moved your hand around to her vagina and put one finger inside her vagina.  She tried to move away because it hurt.  You got up and left.  This is Charge 4 of indecent assault.

13Later that same day, you spoke to her while swimming and said you were sorry for what had happened in the tent.  You told her that she should never - you should never talk about it again.

14In around 1995 when she was in Year 12, she disclosed some of the offending to her mother.  It was the first disclosure that she had made.  She was told that she should see a counsellor and it is clear from the victim impact statement and the other material that the matter was essentially ignored.  She said in her victim impact statement that she was made to feel as if it had all been her fault.

15She ultimately reported the offending to police in May 2016.  You were interviewed in November of 2016 and admitted to touching her vagina once while massaging her in bed.  During the interview, you said you may have showered with her but you do not recall any of the sexualised conduct or conversations that occurred.  You said you did not recall any of the other incidents detailed by the victim.  I do not know whether that is true or not; it’s certainly not uncommon in these matters for the accused to claim they cannot remember any of it, it does not add or subtract anything really in a situation where you have ultimately - well, not ultimately, at an early opportunity pleaded guilty.

16Offending of this sort is very serious and requires application of general deterrence - in your case, not so much - specific deterrence, denunciation and appropriate punishment.  In the matter of Toomey some years ago, His Honour Vincent J said the following in regard to sex offending against children: 

"The situation, in this respect, can be seen to be similar to many encountered in the courts where there has been the sexual abuse of young persons.  Often such victims, experiencing unjustified feelings of embarrassment, shame and guilt that have been induced by the behaviour of the perpetrator, will continue to remain so for many years.  Accordingly, and very frequently, as in this case, the commission of the offences will not be exposed until long afterwards.  Considered in this light, it is in my opinion apparent that the principle of general deterrence must assume very considerable significance as a sentencing consideration.  Further, it is incumbent upon the courts, however long ago the offences were committed, to express the denunciation of the community of such behaviour, through the sentences imposed on perpetrators.  They must be seen to vindicate the values of the society that they represent, fundamental to which is the protection of its children. 

As Hedigan AJA adopting an earlier statement of Marks J in R v Sposito put it in R v MJ:  'A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate.'

17Referring to the circumstances of the matter before him, he continued - and whilst I appreciate this is not incest, it is only because of a matter of time to Charge 4: 

"The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children.  It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim."

18In this matter, your victim, your daughter, has made a victim impact statement which has been read out in court.  I do not propose to read the entire report as complained but as I said during the course of the plea, it is almost textbook in terms of the damage - often irretrievable damage - that is done to young people by this sort of conduct.  She says:

"I have no self-esteem.  I feel socially awkward.  I have a feeling of not belonging and I feel unable to fit in with the people around me.  I suffer from anxiety and sleeplessness.  I have dread in interacting with other people.  I feel judged by people.  I feel I am under the microscope and constantly defensive of myself.  This anxiety builds up until I am physically sick from it.  I do not trust people and have paranoia about ulterior motives.  I tend to hurt people and push them away before they can hurt me. 

As the crimes committed against me made me feel worthless, I ended up in terrible relationships.  I have told others and myself that I cannot have children due to medical reasons when the truth is I do not want to have children because I do not want to bring children into the world to be subject to the kind of abuse I had when I was growing up.  I have immense hurt, disappointment over the loss of my childhood and profound regret for not coming forward sooner.  When I was younger, I blamed myself.  I believed there was something wrong with me for him to behave this way.  I was made to feel like how I reacted about the situation was my fault and the abuser was not responsible for how I was feeling emotionally. 

Prior to going to the police, when I spoke up in the past I was made to believe it was my fault and I believed this.  I have constant nightmares which include vivid and lucid dreams that prevent me from being rested, and I was unable to sleep a full night without a nightmare.  My nightmares are in multiples and relentless.  I used to be self-destructive at my workplace and it has affected any chance of having a career or staying in a job for long periods of time.  I frequently make poor decisions due to my low self-esteem and need to defend myself constantly.  I go through bouts where I abuse food and at times I don't eat for days."

19She describes self-destructive behaviour in terms of self-medicating and various physical consequences.  They are the very consequences that are so common in these matters, and as Vincent J referred to, back in the case of Toomey.  This sort of conduct destroys lives and destroys communities and can destroy families. 

20A gaol sentence is inevitable and it must be one of proper proportion.  I am mindful in this situation of the maximum penalties that were in place at the time of this offending. 

21In simple terms, you are 70 years of age.  You have, as I said, no prior convictions.  You have a very good work record.  You have a very good community record.  You have been involved in charitable organisations over the years.  You worked for many years undoubtedly very well with the CFA. 

22You do still have to a degree the support of your wife.  Your family has disintegrated to a certain extent largely because of this, it would appear, and you seem to have the support of certain members of your church.

23Tendered on your behalf were a neuropsychological report which does not really add much to the equation, and a psychologist report which again does not add much to the equation.  There is no - as I have said - application of the principles of Verdins in this matter.

24Insofar as reoffending is concerned, I am satisfied on the material and in particular because of your age, the risk of that is very low indeed.  I also accept your counsel's submission on your behalf that in effect, you have rehabilitated and accordingly as I have indicated, specific deterrence do not have to play a large part at all in this sentencing process.

25However at the end of the day, yours is a massive breach of trust over a prolonged period of time against a defenceless child who was your biological daughter when it was your duty to protect her, not violate her. 

26In those circumstances, taking all the matters that have been put on your behalf by counsel in very helpful submissions:  on Charge 1, three years; on Charge 2, 12 months; on Charge 3, 15 months; on Charge 4, two years.

27Because of the fact that there is the one victim, because they all happened within the same timeframe, cumulation has been moderated significantly.  So I direct that three months of the sentence imposed on Charge 2, three months of the sentence imposed on Charge 3, and six months of the sentence imposed on Charge 3 be served cumulatively upon each other and upon the sentence imposed on Charge 1.  That gives a total effective sentence of four years.

28Because of your age and rehabilitation prospects, in those circumstances I am prepared to give a minimum term which is lower than what I otherwise would have given and I direct that you serve a minimum term of two years before becoming eligible for parole.

29Pursuant to s.6AAA of the Sentencing Act, I say that but for your pleas of guilty, you would have been given six with a four.

30Are there any other orders I have to make?

31MR TRIANDOS:  No.

32HIS HONOUR:  No other orders?

33MR TRIANDOS:  No.

34MR MARSHALL:  No.

35HIS HONOUR:  There's no PSD?

36MR TRIANDOS:  No.

37HIS HONOUR:  All right.  You can take him out, thanks.

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