Director of Public Prosecutions v Holmwood (pseudonym)

[2021] VCC 252

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

GLEN HOLMWOOD (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	3 March 2021
DATE OF SENTENCE:	11 March 2021
CASE MAY BE CITED AS:	DPP v Holmwood (pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 252

REASONS FOR SENTENCE

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Subject:Plea - sentencing

Catchwords:          Incest

Legislation Cited:  Sentencing Act 1991, Sex Offenders' Registration Act 2004

Cases Cited:

Sentence:12 months Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Grant	Office of Public Prosecutions
For the Accused	Mr T. Kassimatis QC	James Dowsley Associates

HIS HONOUR:

1Mr Glen Holmwood[1], you have pleaded guilty to two charges of incest.  This offence now carries a maximum penalty of five years' imprisonment; it was seven years when the offending occurred but has since been reduced. 

[1] Glen Holmwood is a pseudonym

2You are presently 68 years of age, having been born in December 1952, and you were aged 16 to 17 when this offending occurred in 1969 - 1970.  You now reside in New South Wales. 

3You have no prior convictions. 

4The victim was born in December 1957.  At the time of the offending she was 12 to 13 years old.  She is your younger sister, and now lives in country Victoria with her husband. 

5The background to your offending is as follows. 

6Your parents had three children: the first was your older brother born in 1951, then you in 1952, and then your younger sister was born in 1957. 

7The family lived on a 50-acre horticultural farm north of Swan Hill near the New South Wales border.  After the 1956 floods, it became a cattle farm. 

8You father worked on the farm all day and got home when it became dark.  If your mother was not at home, she would be out playing tennis or golf. 

9In or about 1968, your older brother moved to Melbourne.  His departure meant there were now just four of you left on the farm. 

10Your sister viewed you, Glen, to be not just her brother but also a friend and confidant.  You were a good listener and she could ask you anything.  After your older brother left the home, you continued to take your sister swimming, fishing, shooting and smoking. 

11Both your parents were heavily involved in community sports and would often stay in town to have drinks at the club or attend dinner parties.  When your parents were out, you were tasked to babysit your sister.

12The offences took place when your sister was 12 to 13 years old and you were 16 to 17.  She recalls that sexual misconduct started in 1969, in the year her dog was born. 

13When you were alone at home, you had conversations in her bedroom about the changes in her body.  During these conversations, you touched and rubbed your sister's nipples until they became erect, and you talked about it.  She thought it was natural between brothers and sisters.  This happened more than once. 

14On those occasions, you entered your sister's bedroom as she was changing from her school uniform.  You fondled her breasts, then engaged in digital penetration.  These incidents happened when your parents were away.  The incidents are alleged as part of the context of the principal offences. 

15The circumstances of the actual offending are as follows.

16As to Charge 1, at the time of this incident your sister was 12 years old.  The two of you had a conversation as to whether a penis would fit inside her vagina.  Shortly after that conversation, you penetrated your sister's vagina with your penis.  She thought you were helping her so that when she was older, she could have a relationship with her boyfriend. 

17As to Charge 2, on another occasion your sister was sitting in the lounge room on her father's chair next to the fire place.  You again, on this occasion, engaged in penile penetration.  She could not recall whether you ejaculated or not. 

18In about 1974 your sister went to school in Geelong.  In 1975 she completed her HSC, and the following year commenced at a teachers College.  She did not realise that what had happened when she was younger was wrong, and she believed she was a virgin until she had a boyfriend in 1976, when she was 18 to 19 years old.  Your sister never discussed what you had done because she felt unable to speak about it, and she did her best to bury the memories.

19Your father died on 22 January 1991.  In late 2017 your mother, who was still living in Swan Hill, needed to go into care.  By this time, your sister was no longer speaking with her brothers, so her husband spoke to you.  Your mother went into care in January 2018.  Your sister moved your mother's property into storage. 

20During a dispute about items of your mother's property that you wanted, a comment you made triggered the memories of the offending against her.  By about May to June 2018, your sister began experiencing severe nightmares and tremors, and she also contemplated suicide. 

21Your sister subsequently disclosed her allegations to a girlfriend and then to her husband.  She also sought counselling with a psychologist.  After a few sessions she felt able to report the matter to police.  She made a statement on 21 November 2018. 

22On 19 December 2018, your sister took part in a pretext call with you, during which you admitted to the sexual intercourse and recalled that it had happened twice.  You said you felt ashamed, but you had moved on as it was history now, and one of those things that happens in life. 

23On 22 January 2019, by prior arrangement, you attended at the Swan Hill Police Station, where you were arrested.  You took part in a 'no comment' record of interview.  You confirmed you had spoken with your sister on
19 December 2018, and you were bailed to appear at Swan Hill Magistrates' Court on 29 January 2019. 

24The matter was listed for committal on 13 November 2019.  On the day prior to the committal the matter resolved, and you entered a plea of guilty to the current charges on the following day.  Dates were set for the plea hearing in 2020, but were subsequently adjourned due to the COVID pandemic.

25The victim impact statements tendered from your victim, her husband and their son provide eloquent testimony of the profound psychological trauma experienced by your sister, and how that has also affected the lives of the rest of their family.  Your sister, in particular, has suffered many years of shame, self-doubt, internal questioning and, at times, was suicidal.  Her family has witnessed her emotional instability and outbursts of rage. 

26Your offending is obviously serious.  Your victim was young, you were five years older than her, it was not an isolated incident and involved some grooming by way of earlier sexual conversation and physical contact.  She was entitled to feel safe in her home environment and you, as an older sibling, were in a position of trust in the absence of your parents. 

27I now turn to your personal circumstances. 

28As I noted earlier, you are now aged 68, having been born in December 1952, you were aged 16 to 17 when this offending occurred and you have no other criminal history. 

29You have otherwise led an exemplary life for the following 50 years.  After completing a degree in agricultural science, you have worked as a primary producer developing and expanding the family farm.  Your adult life is distinguished by your commitment to family and friends and by your significant contributions to your community. 

30The psychological report provided by Mr Patrick Newton, clinical and forensic psychologist, opines that you are a person of perfectly normal development and are well-adjusted in cognitive and personality functioning.  Mr Newton concluded that your offending would more likely have been a result of situational factors then in your life, including, most importantly, your immaturity at the time, rather than any broader sexual deviancy or other concerning feature of psychological make up. 

31In mitigation, I accept the submissions of your counsel, including:

·     your plea of guilty, which is significant and betokens genuine remorse - you have spared the victim, as well as other potential witnesses, the ordeal of having to give evidence either at committal or trial; 

·     you have also expressed genuine shame, remorse and recognition that the events were tragic to your sister - so much is evident also from the report from Mr Newton: you became emotional when you heard that your sister had become suicidal; 

·     you have no previous or subsequent convictions or findings of guilt for any offence; 

·     the offending was situational and, importantly, reflected your immaturity at the time; 

·     the delay of 50 years before the time of sentencing;

·     that the offending occurred when you were, at law, a child, and had the matter been brought at the earliest time, you would have been sentenced in the Children's Court, which would have involved a much more benevolent sentencing regime, focussed on rehabilitation rather than punitive measures;

·     your character which, over the past 50 years, reflects a decent life of commitment to family, friends and the community; and

·     your psychological profile, which reflects your good character and entirely normal mental health and personality. 

32The basic purposes for which a court may impose a sentence are punishment, deterrence, that is, both specific to an offender and general to deter other persons who might be minded to offend in like manner, rehabilitation, denunciation by the court and the protection of the community.    

33In sentencing, I must have regard to a range of matters, such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim.  I am required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society, and have fairness applied. 

34I must also have regard to what is called current sentencing practices, that is sentencing practices in effect at the time of sentencing, not those which existed at the time of offending.  This is not to ignore that, had these matters come before a court at the time of offending, they would have been dealt with in the far less punitive regime of the Children's Court jurisdiction.

35In your case, the requirement of sanctions for specific deterrence, rehabilitation and the protection of the public is negligible.  I have no doubt that you will never reoffend in any way. 

36What remains is general deterrence, that is, making an example of your case to deter others from like conduct, and the denunciation by the Court of the type of conduct in which you engaged. 

37The Courts and the community are now much more aware of the very serious long-lasting emotional trauma that is suffered by victims of sexual offending, and must give voice to that suffering in the sentences imposed.  It is because of the necessity for that expression that I have resolved that a non-conviction would be inappropriate in this case, despite the very powerful mitigating circumstances.  I also accept that the weight that should be applied as an expression of general deterrence in your circumstances should be significantly moderated. 

38After careful thought, I have decided that the competing considerations are best reflected by a conviction together with a community correction order.  Both the prosecution and your counsel submitted that such disposition would be appropriate.  As part of the order, I will impose a condition that you undertake some moderate period of unpaid community work. 

39On Charges of 1 and 2 of incest, you are convicted and ordered to serve a community correction order for a period of 12 months. 

40The community correction order commences today and will end on 10 March 2022.  The Corrections centre you will attend is the Swan Hill Community Correctional Services at the Swan Hill Justice Service Centre at 1-3 McCallum Street, Swan Hill, and you must telephone there - the number is on the order which you will be given a copy of shortly - within two clear working days after the commencement of the order, that is by 4 pm next Monday, 15 March 2021.  Ordinarily you would have to attend in person, but because of the particular circumstances now and the COVID regulations, you must telephone instead. 

41All the mandatory terms of a community correction order apply, and the only program condition I impose is that you perform 50 hours of unpaid community work, as directed by the regional manager. 

42I will go over the mandatory terms now. 

43The mandatory terms are that:

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

·     you must comply with the requirements of regulation 17 of the Sentencing Regulations 2011, which essentially sets out your obligations as to your attendance at the community correction centre - that includes not attending drug or alcohol affected;

·     you must report to and receive visits from the community corrections officer;

·     you must report by telephone to the Community Corrections Centre, that is the Swan Hill Centre, within two clear working days of the order starting, and as I have already indicated, that is by 4 pm on Monday 15 March 2021. 

·     you must notify a community corrections 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 the community corrections officer - since you currently reside in New South Wales, this will be arranged by agreement with the community corrections officer at the Swan Hill Community Correction Services;

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

44Mr Holmwood, do you understand and agree to those conditions?

45OFFENDER:  Yes, I do, Your Honour.

46HIS HONOUR:  Thank you.  Now, if you are ill 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 Swan Hill Community Correction Services, and I would recommend that you obtain legal advice if any of those matters happen. 

47However, I must warn you that if you breach any condition of this order you will be brought back to court, and that will be back before me.  One of the options open to me then is to cancel the community correction order and re-sentence you on the original charges.  And I may also deal with you for the breach, which is an offence itself, by sending you to prison for up to three months. 

48So, Mr Holmwood, do you understand the consequences of breaching the community correction order?

49OFFENDER:  Yes, I do, Your Honour.

50HIS HONOUR:  I now ask for the order to be passed to you for you to sign.  You can come down from the dock now for the purposes of approaching your counsel.   

51I note that while the offences to which you have pleaded guilty are registerable offences pursuant to the provisions to the Sex Offenders Registration Act 2004, mandatory regulation does not apply as you committed the offences as a child, and no application for a sex offender registration order was made by the prosecution. I regard that as appropriate in the circumstances.

52Finally, pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, the sentence that would have been imposed is six months' imprisonment.

53That conclude my sentencing remarks.  Are there any further matters from either counsel?  Mr Grant?

54MR GRANT:  No, nothing, Your Honour, thank you.

55HIS HONOUR:  Mr Kassimatis?

56MR KASSIMATIS:  No, Your Honour.

57HIS HONOUR:  Thank you.  There is just one final matter I want to say by way of comment.

58I am not a psychologist; I am not a psychiatrist.  But it seems to me, in the circumstances of this case, that there is a considerable amount of healing that needs to be done.  It is understandable because of what has transpired that there is a lot of anger, particularly on the part of the victim and her family. 

59You have heard me mention the fact that when these offences took place, Mr Holmwood was a child.  Whatever you may think about that, as a matter of law, the law recognises that people under the age of 18 are immature.  That is why it treats them differently from adults. 

60We see a lot of cases come before these courts - and it is not that uncommon from time to time that issues like this arise - because young people do not fully appreciate the consequences of what they do and engage in some sexual experimentation.

61The law treats them differently because they do not understand the full ramifications.  I have no doubt at all that when all these matters happened, with the engagement that the victim had with her brother, the things you used to do together, the conversations you had, that there was a great deal of affection between you both. 

62What happened was misplaced.  But we know that children's brains do not develop, particularly as to understanding consequences and managing inhibitions until they get older, and that is why the Children's Court and a different sentencing regime exists. 

63You might reflect also that the majority of cases we see in these courts are with men and boys, overwhelmingly between 18 and 25.  And after that age, the number of offenders drops significantly. 

64We know boys' brains in particular do not fully develop until they are 24-25.  That is why we see that age group doing irrational things.  And you have all seen it, you know how erratic males between the age of 18 and 25 can be.  It is because they do not really appreciate as much as others do, with more mature brains, the full consequences of their actions. 

65And the more particularly so when they are under the age of 18, so you do need to take that into consideration.  Even though your anger is justified in terms of what has happened, it has to be seen in context. 

66In this case, these events occurred a lifetime ago, 50 years.  I have noticed that whilst there have been expressions of remorse, there has not been, according to what I have heard from the victim and her husband and her son, any formal apology made directly to her.  It seems to me that is something that might be done.   

67I was particularly concerned to read the son's comments and hear them in court: that he has fear of his uncle, he is afraid that his uncle lives far too close to his parents to be safe. I emphasise, however, that there absolutely no evidence at all that Mr Holmwood has any deviancy or is an unsafe person.  In fact, all the evidence for the last 50 years demonstrates a man, as I have said in the sentence, of exemplary character.  Fifty years is a long time to go through life and have that record behind you. 

68So, I hope those remarks are helpful.  You may not agree with them, but I ask you please to consider them in that context.  There needs to be some healing. 

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