Director of Public Prosecutions v Hooper

[2020] VCC 1065

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-20-00609

DIRECTOR OF PUBLIC PROSECUTIONS

v

IAN HOOPER

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	28 May 2020
DATE OF SENTENCE:	17 July 2020
CASE MAY BE CITED AS:	DPP v Hooper
MEDIUM NEUTRAL CITATION:	[2020] VCC 1065

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:  Total effective sentence of 6 years imprisonment; 4 years non-
  parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S.  Thomas	Office of Public Prosecutions
For the Accused	Mr G.  Tellefson	Martin Irwin & Richards Lawyers

HIS HONOUR:

1Ian Hooper, you have pleaded guilty to the following charges which carry the following maximum penalties:

1.abduction of a child under the age of 16 years for a sexual purpose.   The maximum penalty for this offence is 10 years' imprisonment; and

2.Charge 2, sexual assault of a child under the age of 16 years.   The maximum penalty for this offence is 10 years imprisonment.

2In addition, Charge 2 attracts the operation of the standard sentencing provisions, pursuant to the Sentencing Act.   The standard sentence for this offence is four years' imprisonment.   By operation of the non-parole period provisions in conjunction with the standard sentencing provisions, the sentence also attracts a prima facie non-parole period of not less than 60 per cent of this sentence.

3Your plea of guilty and conviction on these offences attracts the operation of the Sex Offenders Registration Act.  You will be registered as a sex offender and must comply with the reporting requirements and other obligations for a period of eight years.

4You have prior convictions but they are irrelevant to this offending.  I shall not say anything further about them.

5The Crown tendered a summary of prosecution opening as Exhibit A.  A summary of your offending is as follows.

6You were born on 17 August 1954 and were 65 years of age at the time of your offending.  The victim in this matter, LS, was born on 30 November 2013 and was six years old at the time your offended against her.

7As at December 2019 you lived in Mildura.  Your home was about 350 metres from a Primary School.  On 4 December 2019 at the end of the school day children were leaving the school gate to go home.  You approached the school on your mobility scooter.  You approached LS, had a conversation with her, and she got on your mobility scooter.  LS told police that you told her to get on the scooter.

8You did not know LS and she did not know you.  You had no permission from her parents or any authority to proceed to take her away from the school.  You started to drive away on your mobility scooter.  That forms the basis of
Charge 1.

9The child rode on your scooter between your legs.  She was sitting on your lap.  You put your left hand between LS’s legs and touched her vaginal area outside her underpants.  That forms the basis of Charge 2 of sexual assault.

10From the very outset, your approach to LS, the abduction and your sexual assaults were witnessed by a school mother.  Upon witnessing the assault, she and her son immediately confronted you.  You avoided eye contact or conversation with the witness but the child confirmed that she did not know you.  The witness took the child to safety and your actions were reported to the police.

11You were arrested later that evening.  You admitted to police that you had picked up LS on your scooter but you denied touching her.  You stated she asked for a ride on the scooter.

12On 6 December 2019 you requested a further interview with the police.  You told them as follows:

1.you picked the girl up because you wanted to 'play with a girl’s vagina';

2.you had no intentions of harming her and that you were going to take her back home when you were finished;

3.you had felt like doing this 'for a little while';

4.you got a little girl because you 'couldn’t get a big one';

5.you did not know and had not seen LS before; and

6.that you put your hand up her dress and 'tickled' her vagina. 

13You were remanded in custody on 4 December 2019 and charged with this offending the following day.  You pleaded guilty at the third committal mention on 28 April 2019, when the matter was listed for a plea hearing, abridged from the Mildura County Court circuit, which would have commenced in late October of this year.  I conclude that you pleaded guilty at an early stage, that you have cooperated with the justice system to expedite the hearing of the matter, and that your plea of guilty has utilitarian benefit.

14You have now served 227 days' presentence detention excluding today.  I declare that period reckoned as already served.

15Pursuant to ss.5A, 11A(4) of the Sentencing Act and ss.49B and 49D of the Crimes Act, the sentence I impose for Charge 2 attracts the operation of the standard sentencing provisions.

16I turn now to a consideration of the standard sentencing scheme:

·the scheme provides a standard sentence of four years on Charge 2, that of sexual assault of a child under 16;

·the scheme also provides for a standard non-parole period of at least
60 per cent of the sentence unless I consider that it is not in the interests of justice to do so;

·the standard sentence takes account only of the objective factors affecting the seriousness of the offence in question and is marked as the middle range of the seriousness for that offence;

·objective factors exclude consideration of matters personal to you as an offender or to a class of offenders.  Rather it is determined wholly by reference to the nature of the offending;

·this does not limit the matters which I must or may take into account in determining the appropriate sentence.   Nor is it intended to affect what is known as the instinctive synthesis process.   The standard sentencing scheme may be considered as a guidepost in the sentencing consideration.   However, it is neither determinative nor a starting point from which I must simply remain, go up or go down in my sentencing consideration; and finally in this respect,

·in determining the appropriate sentence for your offending I must take into account the standard sentence as one of the factors relevant to sentencing.   In this way, it is an additional factor to consider in the sentencing process.

17Furthermore, I must not have regard to previous sentencing practices which are not standard sentencing scheme sentences.

18The two offences to which you have pleaded guilty, individually, are serious enough.  In combination, however, they are extremely serious, and the stuff of nightmares for all children’s parents.  I do not credit you for the assault not being more grave.  Rather, the community must be grateful for the vigilance and tenacity of the witness who saw you and confronted you the moment she saw what you were doing.

19Notwithstanding your own infirmity and limitation on movement, your abduction and sexual assault of this six-year-old child bears the following features:

·there is her tender age, the naïveté that must go with that, and her unformed social outlook which made her trusting of you;

·you were prepared to, and did, prey on her for your own sexual desires;

·the answers you gave to police in your record of interview should be commended for their frankness.  Moreover, your decision to request a further interview in order to get the matter over and done with is also commendable.  Nevertheless, the answers indicate a level of planning, forethought, determination and calculation.  To state that you had been 'thinking about it for a while', and that you determined upon taking a little girl because you could not get a 'big one' is just plain chilling; and

·your frankness to the psychologist, Dr Sowden, only adds to this.  You told Dr Sowden that you intended to take the child home to your place in order to play with her; that is to take off her pants and to play with her vagina.  You had never thought about whether the child was scared or the impact that your actions could have on her.  Although you stated you never wanted to harm her, you said that you 'just wanted her for an hour' and that you 'did nothing wrong', but you knew that it was 'wrong to touch a little girl'.

20Of course, the experience of this court is that there are more serious instances of sexual assault.  The incident witnessed by the school mother was a touching of the vaginal area over the underpants of a young girl, but for that young child, her parents and those around the school, this remains very serious offending.  As I have already stated, it is the circumstances of the abduction which provided the opportunity for you to commit the assault.  It is this in combination with the assault which informs the seriousness of the overall crime.  I am especially mindful of my obligation in respect of the standard sentencing provisions, that is to look at only the objective factors surrounding the assault.  I do not intend to punish you doubly, or to punish you unjustly on each of these charges all together.  What I want to make clear, however, is that such planned offending against such a young girl draws the abhorrence and denunciation of the whole community; that is, every right minded member of the entire community would look at your actions as vile and reprehensible.  Your offending on each of these charges is serious.  The overall matrix of your offending is very serious indeed.

21I am also aware that I must take into account the objective factors affecting the seriousness of the offending on the charge of sexual assault in order to make an assessment for the purpose of the standard sentencing provisions.

22Moreover, there is a presumption of harm in committing sexual offences against children.  The Victim Impact Statement made by the young girl’s father speaks of the swift, expert and rational intervention of counselling and comforting used to minimise psychological harm to this young girl.  Her parents are to be commended for their approach.  So far, it appears to have done something to mitigate the terrors your actions could inflict.  It will be a matter of time and vigilance by her parents to see whether any long term harm has in fact been caused by your actions.

23Your offending attracts the principles of deterrence, denunciation, just punishment and a considerable measure of protection of the community.  I shall return to the question of protection of the community when I consider the psychological material filed on your behalf.

24I turn now to your personal circumstances.

25You are the third of four children and moved with your family from Melbourne to Mildura when you were eight years of age.  You provided very few details of your family life to either your counsel, Mr Tellefson, or to the psychologist,
Dr Sowden.  Your father was employed by the Gas and Fuel Corporation and your mother raised the family at home.  In his outline of submissions on the initial plea hearing Mr Tellefson diplomatically stated that you had a deep antipathy towards your parents and towards two of your siblings.  You told
Dr Sowden angrily of your parents that you 'hate their guts'; that if you had a gun you would shoot your sister for reportedly stealing $50,000 from you; and that your older brother bashed you when you were three.  Otherwise you would not speak to them of your family.

26You disliked school and preferred to stay at home.  You reported having a breakdown at age 10 due to bullying.  You completed two years of secondary education at Mildura Technical College.

27All that you told your counsel and Dr Sowden of your later life was that you worked in factories and undertook 'all sorts of jobs' during your working life. 

28It appears that during your 40s you suffered two strokes, sustaining an acquired brain injury.  Your driver’s licence was cancelled after that.  You used a motorised scooter to get around in Mildura, but you now use a walker whilst in prison.  It is apparent that your mobility has been severely affected by these strokes and by a previous injury to a leg sustained in childhood.

29You told Dr Sowden that you had never seen a psychologist or psychiatrist.

30You had a limited history of relationships in your life.  Neither Dr Sowden nor Mr Tellefson were able to glean any information about you having a social network of friends or relatives.  You confirmed to police and to Dr Sowden that you view adult pornography and that you previously had a girlfriend.  You denied any sexual interest in children.  I shall return to this when I examine the findings of Dr Sowden and Dr Davis.

31You told Dr Sowden that you are in good health.  You are a little shaky on your feet but you are able to get around with the use of the walking frame.  Your life outside prison appears to have been very limited.  Until you were imprisoned you had a dog, you lived on your own and managed to cook, managed your own budget and you were funded by a disability support pension since you were diagnosed with the acquired brain injury.

32Dr Sowden stated, at pages 5 and 6 of her report, that after administering tests she considered your risk of recidivism on sexual offending to be in the high risk category.  She states:

In relation to the stable risk factors Mr Hooper identified he has no intimacy.  He presents with lack of capacity in relation to self and general regulation along with having pro-sexual abuse attitudes towards children in that he appeared to see nothing amiss with ‘stealing’ a child and had no insight into the adverse impact on the child or the child's family arising from his reported behaviours.   In addition, should he return to his normal life, he will in all probability have ongoing opportunities for victim access.  Of concern was his observed anger about what has happened to him as a result of the sexual assault on the child.

33I continue with the quote:

'Mr Hooper has in all probability suffered an undiagnosed Intellectual Disability, with this in all probability preceding his reported [acquired brain injury] arising from him having two strokes during his forties.  There is no evidence of a diagnosable psychological disorder although it appears that he has been an anxious man.  Mr Hooper appears to have had minimal support during his life and indeed appears to have been the subject of indifference and apparent callous behaviour by two of his siblings.  Mr Hooper's indifference to the suffering of the [child] who was stolen by him and who [was] the subject of his sexual molestation appears to have been fuelled by his considered intellectual disability in conjunction with his reported ABI and lack of insight along with a remorseless indifference towards [her] and lack of empathy towards [her] or [her] family.  Mr Hooper's narcissistic personality structure appears to have had its psychogenesis in avoidant and disorganised attachment patterns during his childhood.  Mr Hooper's stated commitment to never doing these acts again appears to be fuelled more by self-interest in terms of not wanting to be incarcerated and losing his lifestyle rather than by any concern about the adverse impact on his victim or [her family].  He is not considered to have the capacity for developing insight into the situation harm sexual molestation has on child development.  Indeed, he was observed to have indifference to such harm anyway although he begrudgingly acknowledged what he did was wrong.  He is considered to have a high risk of reoffending'.

34Dr Sowden continues:

'It is recommended that any release of Mr Hooper from incarceration is dependent upon him being assessed for residential care in either a residential facility for disabled people or in an appropriate nursing home facility able to cater for such a client.  It is strongly recommended that Mr Hooper is not able to be released into the community in his former capacity in which he is free to roam'.

35You told Mr Tellefson that your time in custody has not been particularly difficult and that the time passes very quickly.  Nevertheless you are anxious to learn what sentence I will impose upon you so that you can work towards your release date.

36Given the difficulties encountered by Mr Tellefson in taking instructions from you, and the concerns expressed by both counsel and me after reading the report of Dr Sowden, I ordered a full report from Forensicare.  You were interviewed by Dr Michael Davis, consultant forensic and clinical psychologist at Forensicare.  Dr Davis is a psychologist of considerable standing.

37Although Dr Davis experienced some difficulties in interviewing you by video link, he did so for over a period of more than two hours.  In his comprehensive report, Dr Davis stated, amongst other things, as follows:

·   in his history taking, he concluded that you had been a sensitive child who experienced bullying and physical abuse.  You were sexually abused at 17 years of age by a man aged about 40;

·   you left school midway through year nine and planned to become a steam train driver.  You were unable to do so and you worked in a range of positions until 1996.  You then had the first of two serious strokes which now require you to use of a mobility scooter or walking frame;

·   Dr Davis concludes that you suffered a brain injury as a result of these two strokes in 1996 and 1998 respectively.  Although it is difficult to guess your presentation before that time, Dr Davis considers that you would have had reduced intellectual functioning from a reasonably young age.  On testing by Dr Sowden, your Abbreviated IQ was assessed as within the 'mild impaired to borderline impaired range of cognitive ability greater than 0.3 per cent of adults in your age range'.  You are likely to have prominent schizoid and avoidant traits;

·   after testing and history taking, Dr Davis considers that your offending was probably not motivated by paedophilic disorder but by an 'inadequate pattern of behaviour'.  He states:

'This usually involves an unusual, withdrawn, possibly eccentric individual who turns to children because he finds them non-threatening with whom he can explore his sexual interests.  They tend to lack interpersonal skills to effectively groom their victims'.

·   he found you have been single and seemingly devoid of sexual activity for a very long time.  At paragraph 78 of his report, Dr Davis states that your offending is very different to most other offenders in that you have no history of sexual offending and you committed your first sexual offence at age 65 years.  Moreover, you have developed some remorse and regret for your offending (although you still have poor insight into the motivation for your offending).  Nevertheless, Dr Davis tentatively considers that you still pose a moderate to high risk for sexual recidivism and that the most likely scenario for offending would be contact with a young girl.  Your risk of recidivism is therefore somewhat higher than that of the average sexual offender;

·   in the end, Dr Davis considers that you require a comprehensive neuropsychological evaluation to determine the extent of your brain damage and the consequences of this for further functioning;

·   although it would need to be guided by the outcome of a neuropsychological evaluation, you should also be considered for sexual offender treatment;

·   Dr Davis states 'it would be prudent to ensure that he does not have unrestricted access to underaged females in the future'; and

·   upon your release from prison you will require accommodation.  Although decisions would be guided by the neuropsychological evaluation,
Dr Davis considers you will probably require residential care of some description with safeguards to ensure that you cannot target elderly persons.

38It is necessary to say more about your intellectual functioning at this point.  On the one hand, your cognitive functioning has been assessed as 'mild impaired to borderline impaired'.  Ordinarily, this may lead to some moderation of the principles of general deterrence.  Dr Sowden stated that you 'in all probability suffered an undiagnosed intellectual disability…'.  Yet while Dr Davis concludes you appeared to have had reduced intellectual functioning from a reasonably early age he is 'not convinced that this was ever at the magnitude of an intellectual disability'.  Dr Davis considers that a neuropsychological examination would be necessary to gain further understanding of the cognitive deficits that have arisen since your two strokes.

39Given the tentative nature of Dr Sowden’s conclusion, that is, it is stated as being in all probability and is not a concluded position, and given the reservation expressed by Dr Davis, I am not prepared to conclude that you suffer from an intellectual disability such that it should operate to moderate the principles of general deterrence.  In any event, after consideration of both reports, your counsel does not press me to do so.

40Dr Sowden assessed your risk of sexual reoffending as in the high category.  Dr Davis assessed your risk as being in the moderate to high category, with a likely future target being young female children.  The fact is the community expects and deserves a high level of protection of its vulnerable members from sexual offending.

41I emphasise again, both Dr Sowden and Dr Davis voiced the need for suitable accommodation arrangements to be made upon your release from prison.

42Dr Davis further noted, at paragraph 78 of his report, that it is almost impossible to obtain a neuropsychological assessment at this time.  Neither party submitted that I should defer sentence until such an assessment can be made.  After considering the situation carefully, I consider that I have sufficient material available to me upon which to sentence, and I intend to do so.

43After I received the Forensicare report I invited both parties to provide further written submissions.  I am grateful to Ms Thomas and Mr Tellefson for their written submissions made before this hearing today.

44Mr Tellefson, on your behalf, submitted that your offending must be met by a term of imprisonment with a non-parole period.

45Ms Thomas, who prosecuted this matter on behalf of the DPP, also submitted that your offending must be met by a term of imprisonment with a non-parole order.  Ms Thomas provided me with cases in respect to sentencing under the standard sentencing provisions.  There are about nine cases in total, eight from this court, including a couple of my own earlier sentences, which were relied upon by the Crown as comparable cases of sentences imposed under the standard sentencing provisions.  I read those sentences and I carefully read the decision of the Court of Appeal in Lugo.

46The spread of offending and sentences imposed in those cases serve to emphasise that, in the end, I cannot be influenced by previous sentences; rather, I must determine the appropriate sentence for your offending in this case.

47Accordingly, I sentence you as follows:

48On the charge for abduction of a child under the age of 16 for sexual purposes, you are convicted and sentenced to a period of imprisonment of four years.

49On the charge of sexual assault of a child under the age of 16 years you are convicted and sentenced to a period of three years and three months. I order that two years of the sentence be served cumulatively on Charge 1. 

50That leads to a total effective sentence of six years. 

51I order that you serve a period of four years before you are eligible for parole.

52I declare the period of 227 days' pre-sentence detention reckoned as already served.

53I have imposed a sentence for Charge 1, which is under the standard sentence provided for the offence of sexual assault.  I have done this after weighing the objective circumstances and taking account of all of the circumstances which form part of the synthesis of sentencing.  These, of course, go beyond the matters to which I must have regard, specified in the standard sentencing provisions.

54You are to be registered as a sex offender and you must comply with the reporting conditions for a period of eight years.  There are a number of other complex and onerous provisions which govern your registration under the Sex Offenders Act.  Normally, Mr Hooper, I would provide you with paperwork and ask you to sign an acknowledgment.  It is not possible to do so but you will be provided with the paperwork and I will note on the records that I intend to provide that to you.

55Mr Tellefson, will you provide Mr Hooper with some information about the Sex Offenders Registration Act or will at least your instructors do so?

56MR TELLEFSON:  Yes, it seems imperative, Your Honour, and I will make arrangements for that to happen.

57HIS HONOUR:  All right, thank you.  The 6AAA declaration is but for the pleas of guilty in this matter I would have imposed a sentence of eight years with six years to serve.

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