Director of Public Prosecutions v Hoogerland
[2016] VCC 230
•08 March 2016
| Revised Not Restricted Suitable for Publication |
AT WANGARATTA
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHAN HOOGERLAND (a pseudonym) |
---
| JUDGE: | HIS HONOUR JUDGE GUCCIARDO |
| WHERE HELD: | Wangaratta |
| DATE OF HEARING: | 01 March 2016 |
| DATE OF SENTENCE: | 08 March 2016 |
| CASE MAY BE CITED AS: | DPP v Hoogerland |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 230 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | Office of Public Prosecutions |
| For the Accused | Mr S. Lindner with Mr S. Ginsbourg | Stary Norton Halphen |
HIS HONOUR:
1Johan HOOGERLAND,[1] you were found guilty by jury verdict of one count of rape.
[1] “Johan Hoogerland” is a pseudonym.
2The circumstances were as follows: you were 31 years of age at the time and had been in a relationship for about 20 months with the complainant who was 17 years old at the time. You fathered a child from her, although you had four other children living with you from a previous relationship which had ended tragically, when your partner of some years had died suddenly from an unexpected medical condition.
3You and the complainant were living together at the time from mid-2012. She became pregnant in September 2012 but in November of that year she had a miscarriage. She fell pregnant again in January 2013.
4Both after the first miscarriage and thereafter, there was evidence (which was niether objected to nor gainsaid during the trial) that you had been frequently violent towards the complainant and this was the background which described the context within which the rape took place. This violence included hits to the face and head.
5On some occasions, the complainant would seek refuge in a bedroom to avoid further conflict and violence. On one occasion, you pushed her up against the wall. She considered leaving you but she feared for the children and in any event, despite your violence and disregard for her welfare, she professed to continue to love you.
6In October 2013, a child was born to you but your relationship deteriorated and the violence escalated to the point where you would choke her by holding her by the throat.
7In early January 2014, she agreed to your suggestion that you engage in a threesome. You were content with the arrangements that she made in this regard at first, but that turned into jealousy and aggravation.
8Late in January 2014, the complainant gave evidence she noticed a change of attitude in you on this one particular day. You were being affectionate, you seemed to have overcome your jealousy. You picked her up in your arms in a seemingly romantic gesture and took her to the bedroom.
9When you got there, you tossed her onto the bed and said, "This is what you want?" You took her pants and underwear off. She was trying to pull them up and push you off. You pushed her up against the wall, got on top of her and raped her by penis in the vagina. She screamed in pain because this post-partum penetration was painful due to complications of the birth in October having required stitches. She felt pain.
10You continued, she said, for about ten minutes. When you finally got off her, you sat on the bed and said, "I just raped you," seemingly in a description of what you had done to her. Fearing for herself, the relationship and for her safety, she sought to pacify you as you seemed upset and angry. She said you put a tie around your neck and you said that you would kill yourself. She untied the tie off your neck.
11Around March and April 2014, she told a friend about the rape and then she reported the matter to police.
12Even within a relationship in which there are some periods of mutual affection and support, violence can undermine and undo any positive aspects of life. Rape is a fundamentally violent crime. This usurpation of the will and physical integrity of another person is made worse by the fact that that person was in a relationship with you and held onto feelings of loyalty and affection. A rape in this context is a fundamental betrayal of the dignity of the victim and a brutal shattering of the respect and nurturing which that person would naturally and reasonably expect from a partner.
13It is an abhorrent offence which must be denounced and appropriate retributive punishment imposed. It was committed by you in a context of a relationship which featured recurring domestic violence and the situation in which that violence facilitated the commission of the offence by the inculcation of fear in the complainant by exercise of force.
14However, I must make clear that I sentence you for the rape, not for other violence. You are undergoing a sentence for violent offences in which the complainant features as one of the victims. I presume the sentence is appropriate to the offending and I am not in any way engaging in a process whereby there is double punishment. That would not be appropriate.
15What is appropriate is that I consider the principle of totality in these circumstances. It was argued that had the violent offences been dealt with together with the rape, a total sentence would have been struck by the court. It appears that the offences for which you were sentenced bookended, in fact, the rape in terms of chronology. As an appraisal of your criminality during the relevant period, it is axiomatic that a sentence dealing with that criminality would have dealt with it by way of the principle of totality.
16I will not speculate as to what that application would have yielded. A different outcome may have resulted from a guilty plea to the rape, but there was no guilty plea to the rape; and though I do not aggravate the sentence in response to that course, the reality now is that there is no discount to be applied to a plea.
17There are two weeks left on that other sentence you are serving, so that concurrency has very limited application. In order to satisfy the principles of totality, a significant amelioration of the sentence on the rape in recognition of this is required. I think that (properly applied) the principle is really about recognising that the total period spent in reclusion by you needs to be carefully examined to avoid a crushing sentence.
18A total period of incarceration which is an appropriate response in all the circumstances is warranted. My sentence, however, must equally recognise the gravity of the offence committed as a standalone criminal act, and assign the proper measure of specific deterrence, general deterrence, denunciation and punishment to it. The community looks to the Court to send a clear response to those who would do violence in domestic situations where victims, like in this case, are vulnerable because of their age, situation, effective susceptibility and availability to men who unjustly inflict violence upon them.
19A comprehensive plea was made on your behalf and I will take all the matters raised into consideration. Before outlining those in summary, I note that you have a prior violent history and that past offence criminality was appropriately raised with the court on the plea.
20This history goes to your prospects of rehabilitation which in my view must be guarded. You have a prior conviction for assaults, occasioning bodily harm in company in 2001, from a Queensland court. Without conviction, you were sentenced to 200 hours of community service. In 2004, you were convicted and fined for offensive behaviour in a public place and possession of a controlled weapon. And the same charges recurred in 2007 when you were again convicted and fined.
21The post-rape convictions encompassed assaults on a female, contravention of family violence safety notices, threat to inflict injury, two aggravated assaults on a female, threats to kill, reckless conduct endangering serious injury and recklessly causing injury. You appealed to this court but you were sentenced to two years with a non-parole period of 15 months. You have served 143 days by way of presentence detention as of 4 August 2014 when you were sentenced. A summary of this offending was tendered and exhibited on the plea and it describes violence towards the complainant and other family members, including your mother, in close proximity to your young children without regard for their safety and welfare.
22I received the victim impact statement from the complainant about the offence I am dealing with here. She spoke of the physical pain of the rape post-partum, the consequential loss of property but more importantly, she suffers from depression and anxiety, lack of trust, hypervigilance, nightmares and recurring fear. I take this into account.
23A reference by your younger brother was received as well as from your sister. I have taken these into account. You brother is dismayed at the out of character nature of your criminality. Your sister speaks of your sudden loss of your partner, Bruna,[2] and of her ongoing support of you and your predicament.
[2] “Bruna” is a pseudonym.
24It was said that I should assess the gravity of the rape by these elements: its spontaneity, its lack of accompanying violence beyond the inherent nature of unwanted sexual penetration and that no ejaculation occurred and that you were contrite after the offence. This, it was said, places the rape towards the lower end, below mid-range offences. I accept that there was a significant element of spontaneity in the commission of the offence, but in the context of a sudden change in behaviour by you, which gave the complainant a false sense of security as you took her to the bedroom.
25In my view, there was an element of premeditation in your behaviour. What took place thereafter may have been spontaneous in its implementation, but it seems to me that was the end result of some reflection or thought on your part which preceded its commission.
26The rape was painful and though not accompanied by any other form of frank violence which I accept, it was nevertheless a violent act in itself.
27Your so-called contrition after the event did not crystallise into a plea of guilty, so that whatever regret you may have felt in the immediate aftermath cannot be said to have fully morphed into remorse. I would nevertheless agree that this offence falls below the mid-range committed for a limited period upon a person who up to that point had been consensually intimate with you and luckily, in the absence of other violence.
28You are 34 years of age in two weeks, the eldest of five children. Your mother has been assiduous in her presence in court in support of you, and your brother has as well. Your mother separated from your father when you were nine and continued to raise you. From age 18, you have had no contact with your father. Your mother re-partnered and there were two other children, step-siblings to you. Your stepfather is currently incarcerated. You have a reasonable work history of mainly labouring and menial work.
29At age 18, you lived in Queensland for a few years and there met a woman with whom you fathered a daughter. You retained care of her when you separated. You then met Bruna, with whom you had three children. Tragically, she passed away, unexpectedly and quickly, following a ruptured spleen. And I was told that a coroner's inquest concluded she died of natural causes.
30She had a child from a previous relationship which means you were left with five children, you having taken up your own children and hers as your own together with the three you had. Your raising of these children in these circumstances was difficult - that stands to your credit.
31Twelve months after Bruna's death, you met the complainant. However, you now believe that the grief and loss of Bruna compromised your mental health and I accept that proposition.
32Since being in custody, you have used the opportunities offered to you to improve yourself and I take into account every effort at rehabilitation you have made. You were at the Melbourne Assessment Prison for the first 12 months after which you were transferred to Marngoneet Prison where you engaged in a number of programs: a drug and alcohol course and one cannabis-dependency which lasted some two months.
33Cannabis use is featured in your background as well as alcohol use and they no doubt require ongoing monitoring and education. These courses provided group therapy as did a one-month course on grief and loss. You also participated in a program about domestic violence for three intensive months, six to eight hours per week. This course aims at behaviour pattern modification of thought and actions.
34Had you not been charged with a rape, you would have likely stayed at Marngoneet but you were transferred out of the remand system to Port Phillip Prison and then Dhurringile Prison.
35Before this transfer to a protection unit, you had been receiving visits from your children but that has ceased. I will take into account this history.
36Your mother has indicated that upon your release, she will be best placed to offer you support if you were to live nearby. And it is hoped that through a forklift licence which you gained, you will have access to work. She currently looks after four of your children, while your sister cares for the other.
37As I have said, your prospects must be guarded but not forlorn. If the work done so far has an impact on your state of mind, you may return to the community and your family to contribute more constructively than you have done so far. Your displays of violence clearly need to be addressed comprehensively if you were to re-join the community in the long term.
38I note for the record that rape carries a maximum of 25 years' imprisonment. Please stand, Mr Hoogerland.
39In relation to the count of rape, you are convicted and sentenced to four and a half years' imprisonment with a non-parole period of three years and three months.
40Are there any other orders, Mr Cordy?
41MR CORDY: Yes, there is the 464 order, Your Honour and also the Sex Offenders Registration which was 15 years.
42HIS HONOUR: Fifteen years? Yes. Is there a 464ZF draft? Mr Hoogerland, because of this sentence, but it is not part of the sentence, it just happens automatically upon a person being sentenced as you are, the provisions of the Sex Offenders Registration Act come into play and you become a registered sex offender. There are some very onerous and difficult ongoing obligations that you will have to stay on top of for the next 15 years.
43OFFENDER: Yep.
44HIS HONOUR: They require you to do all manner of things and report to the police about all different circumstances and I am sure you will be able to get advice about that, but they require constant monitoring from your part. Otherwise, you will be breached and you will be brought back before the Court.
45OFFENDER: Yes, sir.
46MR CORDY: In terms of the 464, Your Honour. That draft order will be prepared for Your Honour's signature.
47HIS HONOUR: Yes, from memory, Mr Ginsbourg said that it wasn't opposed, so I will make the ‑ ‑ ‑
48MR LINDNER: That's correct, Your Honour.
49HIS HONOUR: Yes, thank you. Mr Hoogerland - that order has to do with a collection from you for a biological sample that is going to be placed on a database. That is usually a scraping of the inside of the mouth with a cotton bud to get biological material. If you refuse at the time that a properly authorised police officer comes to ask for such a sample, the police officer has authority to use reasonable force to obtain a sample of blood from you at the time, if you do not consent. Do you understand?
50OFFENDER: Yes, sir.
51HIS HONOUR: Yes, thank you. All right, I see Mr Ginsbourg in Court and I note Mr Lindner is at the Bar table. Just take a seat, Mr Hoogerland, you will need to sign the Sex Offenders Registration papers. Any matter that needs clarification at that end, Mr Ginsbourg or Mr Linder?
52MR GINSBOURG: No, Your Honour.
53HIS HONOUR: Yes, thank you.
54MR GINSBOURG: Your Honour should indicate - does Your Honour intend the sentence to run concurrently with what little remains of the current ‑ ‑ ‑
55HIS HONOUR: I am sorry, my intention is that not having said anything contrary, that it will run concurrent with the current sentence.
56MR GINSBOURG: Thank you, Your Honour.
57HIS HONOUR: Yes, thank you. All right, well it is a matter of your client,
Mr Hoogerland here in court needing to sign just the documentation in relation to the Sex Offender Register. Beyond that, there is nothing else that needs to happen at this end.58MR GINSBOURG: Yes ‑ ‑ ‑
59HIS HONOUR: I will excuse the ‑ ‑ ‑
60MR GINSBOURG: Sorry, perhaps if I could indicate to Mr Hoogerland that I will speak to him in the next couple of days.
61HIS HONOUR: Yes. He understands that, he is nodding.
62MR GINSBOURG: Thank you, Your Honour.
63HIS HONOUR: All right, yes, thank you both.
64MR CORDY: Thank you, Your Honour.
65HIS HONOUR: Thank you Mr Cordy. I will just stand down. I will wait for those papers.
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