Director of Public Prosecutions v Hopson (a pseudonym)
[2016] VCC 293
•18 March 2016 (at Melbourne)
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT WARRNAMBOOL
CRIMINAL JURISDICTIONCR 15-01010
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| IVOR HOPSON[1] |
[1] Ivor Hopson is a pseudonym allocated to protect the identity of victims pursuant to section 4 of the Judicial Proceedings Reports Act 1958
---
| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING: | 10 March 2016 & 8 April |
| DATE OF SENTENCE: | 18 March 2016 (at Melbourne) |
| CASE MAY BE CITED AS: | DPP v Hopson (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 293 |
REASONS FOR SENTENCE
---Subject: Sentencing; sexual offence and child pornography
Catchwords: Pleas of guilty; indecent acts with children under 16; incest with step-daughter; two periods of offending; prior similar offences against previous step-daughters; general deterrence, specific deterrence and protection of the public
Legislation Cited: Sentencing Act 1991 s 6AAA, ss 6D, 6E, 6F; Sex Offender Registration Act 2004; Crimes Act 1914(Cth) s 16A
Cases Cited: DPP v Smith [2010] VSCA 215; CDPP v Zarb [2014] VSCA 347; R v Verdins & Ors [2007] VSCA 102; Reid (a pseudonym) v R [2014] VSCA 145
Sentence: State: TES 7 years 6 months’ imprisonment with non-parole period 5 years 9 months
Federal: 6 months’ imprisonmentTES: 8 years’ imprisonment with non-parole period of 5 years 9 months. --
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Triandos | Office of Public Prosecutions |
| For the Accused | Mr Z. Broughton | Victorian Legal Aid |
1HER HONOUR: Ivor Hopson, you have pleaded guilty to two charges of indecent act with a child under 16, six charges of incest, one charge of using a carriage service to access child pornography, and two charges of possessing child pornography.
2You have also admitted a prior criminal record to which I shall refer in some detail later.
3The maximum penalty for each charge of indecent act with a child under 16 is ten years' imprisonment. The maximum for each charge of incest is 25 years' imprisonment. The maximum for the Commonwealth charge of using a carriage service to access child pornography is 15 years' imprisonment, and the maximum for each of the Victorian charges of possessing child pornography is five years' imprisonment.
4You will not be receiving the maximum penalties for any offences individually, but they reflect the objective relative seriousness with which parliaments, both state and federal, on behalf of the community, regard offences of these types, and I must, and do, take that into account.
5The charges of indecent act with a child under 16 and all charges of incest were committed against the one person, a girl aged 11 at the time of the first five offences, and aged 18 to 21 at the time of the last three. She is described as having a mild intellectual disability. I shall not be using her name nor that of her mother, to enable publication of these reasons without disclosing her identity. Her name has, of course, been used throughout the hearing, and is contained in Exhibit 1 which was the summary of prosecution opening. That summary also sets out some detail of the offences and of the family circumstances which I shall not repeat here.
6I shall summarise only enough of the circumstances of the offences to enable assessment of the seriousness and criminality of your offending.
7In about 2003 you commenced a relationship with a woman who, in about July 2004, moved into your house at Portland together with her two daughters. The elder daughter was aged 11 at the time. At that stage, you were aged 35.
8Within about six weeks of them moving into your house, the Department of Human Services intervened and removed the two girls due to your prior history of sexual offending against your previous step-daughters. Unfortunately, even within that time you had committed a number of offences against the elder daughter and those are the subject of Charges 1 to 5.
9You had begun entering her room and hugging her, and progressed to touching her breasts over her clothes. On one occasion you put your hand down her top and touched her breasts on the skin, and that is the subject of Charge 1 of indecent act with a child under 16. The girl told her mother who apparently responded, "He wouldn't do that."
10Soon afterwards, one night you entered the girl's room where she was texting her friend and was upset as a result. Ostensibly to comfort her, you lay down next to her on her bed, and put your hand down her pyjamas and touched her indecently. That conduct is the subject of Charge 2 of indecent act with a child under 16.
11You then rolled on top of her and digitally penetrated her vagina. She could feel your fingers scratching inside her. That is the basis of Charge 3, the first charge of incest; based on her being the child of your then de-facto partner. Afterwards, you sat on her bed and told her not to tell anyone what had happened. She did tell a friend who told her to tell the police, but the girl was scared and did not do so.
12Charge 4 of incest is based on your actions on another occasion when again you digitally penetrated her vagina and then withdrew your hand and, with it, pushed your penis into her vagina. When she told you to stop you did, and you got dressed and left her room. A week or two later she told her friend's mother what you were doing, and that mother asked her if she had told her mother. The girl said she had not because her mother would not listen. It is not known whether the friend's mother spoke to anyone about it.
13Another night you entered the girl's bedroom as she was finishing her homework, pulled her pants down, laid her down and again penetrated her vagina with your penis. You moved your whole body up and down but stopped when the alarm on her mobile phone went off. You again told her not to tell anyone. That is the basis of Charge 5 of incest.
14Shortly after that incident, the girl and her sister were removed from your home by the Department of Human Services. She and her sister remained in foster care until each turned 18. Their mother remained living with you in a relationship, and in November 2008 you and she were married.
15Towards the end of 2011, when the girl the subject of these charges was aged 18 and had finished school, she moved back to live with her mother and you at your house. At that stage, you were aged 43. You offered to accompany her driving between Portland and Warrnambool as she had obtained her learner's permit and her mother did not drive.
16Between 9 September and 20 December 2011, you engaged in penile/vaginal intercourse with her at the family home after you had driven with her from Warrnambool. You instigated this in a text message to her asking for sex. This conduct is the subject of Charge 6 of incest. By then, she was formally your step-daughter. Charge 6 is a representative charge representing one other occasion during the same period when such intercourse occurred at your home.
17About a year later, you again engaged in sexual intercourse with your step-daughter. On an occasion between 26 December 2012 and 31 December 2012, when she was aged 19, this occurred in the master bedroom at your home. It happened after a camping holiday. That occasion is the subject of Charge 7 which is a charge of incest.
18Charge 7 is a representative charge representing 15 occasions of such sexual intercourse between September 2012 and early February 2015.
19The final charge of incest, Charge 8, arises from conduct of yours on an occasion between 1 June 2013 and 3 February 2015, when you were alone in the house with this step-daughter. She was aged 20 to 21 at this time. You engaged in oral penetration, putting your penis into her mouth, then anally penetrated her with your penis but ceased when she said it hurt. You then put your penis into her vagina and had intercourse for several minutes.
20The victim of these offences had made a statement to police in August 2008 about the offending that occurred when she was aged 11. You were interviewed by police about these allegations in 2009, but denied them, and no charges were brought.
21The offending that occurred after she turned 18 came to police notice when a search warrant was executed at your house on 3 February last year in respect of use of a carriage service to access child pornography. Images were found which you had taken of your step-daughter in various sexual poses or having sexual intercourse with you. They had multiple dates spanning 2013 and 2014. These images are not the subject of any charges, but they are relevant to the circumstances of the offending under Charges 7 and 8.
22On 3 February last year, a Commonwealth warrant was executed at your house in Portland and several electronic devices were seized. Apart from the images I have just mentioned that you had taken of your step-daughter, there were images found depicting children in various sexual contexts - child pornography.
23Analysis of the hard drive of a computer tower confirmed 2310 downloads from what is called “Pre-Teen Hard Core”, between 11 April 2014 and 28 January 2015 and 14 incomplete downloads. This is the basis of Charge 9, a Commonwealth charge of using a carriage service to access child pornography.
24Further, in the computer tower there were found 62 images of child exploitation material stored on the hard drive, and on a red laptop was found one child exploitation image. This image had been on your computer for 18 days when seized by police. This material on these two computers is the subject of Charge 10 of possessing child pornography. That is a charge brought under state law, Victorian law.
25On your mobile phone there was located one Category 4 child exploitation material movie. That movie was saved on your mobile phone less than a week before police seized it. That is the subject of Charge 11, also a Victorian charge of possessing child pornography.
26I must assess the criminality and your level of blame worthiness in each of the 11 offences, but in doing so I approach them as three sets of offending.
27The first group of offences are Charges 1 to 5 against the 11 year old daughter of your then de facto partner. This began with indecent acts, escalating quickly to acts of penetration which are the basis of the charges of incest. There can be no doubt that all of this conduct, but in particular the acts of sexual penetration of an 11 year old girl, call for unqualified condemnation. Because of her age and the fact that you were more than 20 years older or more than three times her age, the offending is more serious.
28She is described as being mildly intellectually disabled, but I do not know whether you were aware of that at the time. It would have made her even more vulnerable than an 11 year old of average intellectual capacity. The fact that she was living in your home because of your relationship with her mother gave you the ability to exercise some power or control over her and put you in a position of trust towards her. You abused that trust, and the situation and in doing so were acting for your own sexual gratification.
29This offending only need be described to show that you must have known you were doing wrong, but in your case it was even more reprehensible as it was repetition of behaviour in which you had previously engaged over an extended period and for which you had previously served terms of imprisonment. I shall come to your past criminal history shortly, but there can be no doubt that you were well aware when this girl's mother moved with her two daughters into your home that there ought to have been no conduct by you whatsoever of any sexual nature with either of those girls.
30It can be said in assessing the seriousness of the offending that you did not engage in some behaviour which might have aggravated or made the offences even more serious. Unfortunately, there have been other cases before the courts which have disclosed other behaviour which has been regarded as aggravating. In particular, there was no overt threat of violence, and no deliberate harm inflicted in the way of physical assault. The conduct was not of a particularly degrading or humiliating nature and there were no restraints used or other implements used. The offending occurred over a relatively short period, at most the five to six weeks that the girl was living in your home at that stage of her life. However, that was not due to any self-restraint on your part, but because the girl was removed from your house due to your past history.
31In assessing the seriousness of the offending I regard the initial indecent act, had it been an isolated act, as of relatively low seriousness, but it was clearly a forerunner of much more serious offending, and given your past history you ought to have been particularly alert to not crossing any such boundaries. I categorise the acts of incest as at a medium level of severity for offences of this nature, charge 4 being the most serious, in my view, as it involved both digital and penile penetration, overall I take into account the age of your victim, the abuse of trust and power as she was living in your home and was the daughter of your partner, but note that your conduct did not bear some of the more serious features of aggravation unfortunately found in some other cases.
32The second set of offences that I have grouped together are the three charges of incest from offending that occurred between 2011 and early 2015. By then your step-daughter was over 18, and public abhorrence of sexual activity with a young woman of adult age is generally lower than for a much younger child. However, you were formally by then her step-father, and although you told police that you did not think it was illegal as she was not your blood relative, you did admit knowing that it was wrong - morally wrong. Moreover, although your previous victims were younger than 18, I find it very difficult to believe, given that you had previously served terms of imprisonment for sexual offending against your previous three step-daughters, that you did not know that it was illegal to have sex with a step-daughter, even if she was of adult age. That is not an aggravating factor. It is just that I do not accept as a mitigating factor that you were not aware that it was illegal to engage in that activity with her once she was 18.
33What is submitted on your behalf in relation to these offences is that notwithstanding the very grave seriousness of your conduct towards this victim, and in the context of your past offending, there are some factors which remove your offences from for the worst or even high levels of seriousness for such offences. That is because there was no brutality or particular violence to your actions, you did stop on occasions when she told you that what you were doing was hurting, and there was no extra level of depravity such as humiliation or restraints, implements or sex toys used.
34In assessing the seriousness I note the potential maximum penalty is a reflection of the objective high level of seriousness. Yours are not at the highest level of seriousness for offences of this nature, but involve a clear breach as I have already said about the earlier offending of trust, particularly when your victim was younger but also even after she was 18.
35I note that two of the charges in this group of offences are brought as representative charges. I sentence you only on the basis of the conduct that is alleged as part of Charges 6 and 7. Sorry, it is 7 and 8 - I will go back. The two that are the representative charges, I am only sentencing you on the content that is alleged of those individual instances. The relevance of them being representative charges is that you cannot rely on any mitigation on the basis that these were out of character, or spontaneous events which were not repeated.
36I have read the Victim Impact Statement of your victim herself, and also one by her mother and one by her sister. Each has asked that they not be read out in court and I will not repeat their content. I have given minimal weight to what the mother has said. She is still your wife. Given her history of remaining in a relationship with you at least until your arrest, and given the content of her statement, as I say, I have given very little weight to what she has said.
37Your actual victim will inevitably have suffered significant emotional consequences at the different stages of her life so far, as a result of the two different stages of offending. I am satisfied that some such consequences are likely to continue. For how long I cannot estimate. She did not want the content of her statement read out in court, so I shall not repeat any detail, but I accept that she continues to feel the impact of your offending and, as I have said, I am satisfied that is likely to continue for at least some time into the future.
38Her sister's statement does not, in my view, contain anything more specific, but I accept from it that there has been impact on the whole family from being aware of these matters and, of course, they are no longer living as part of your household - that being one of the more immediate physical effects but there has been an emotional effect on all of them.
39In relation to the child pornography charges - and I regard them as the third set of offending here - I have seen a selection of still images from the video film found on your mobile phone. It is unquestionably of child exploitative nature. I have not seen any of the more than 2300 images from your two computers so cannot personally assess the nature of that material, and there was not the usual categorisation into levels of pornography put before me, which again means that I cannot specifically assess the level of gravity of the material. I proceed therefore to sentence you on those three charges based on the description in the agreed summary that what was found in all of these images is to be described as what is called "Pre-Teen Hard Core."
40The general principles which apply in sentencing for such offences enunciated by Justice Nettle in the DPP v Smith for possession of child pornography, and adopted in CDPP v Zarb for Commonwealth offences such as accessing child pornography, are as follows:
(i) First, the nature and gravity of the offending ordinarily falls to be determined by reference to:
(a) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
(b) the number of images of items possessed;
(c) whether the material is for the purpose of sale or further distribution; and
(d) whether the offender will profit from the offence. Where child pornography is for personal use, the number of children depicted and thereby victims is also regarded as a relevant consideration.
41General deterrence is regarded as the paramount sentencing consideration because of the public interest in stifling the provision and use of child pornography. By general deterrence the law means the imposition of a stern enough sentence in all the circumstances to send the message to others who may be tempted to engage in this type of activity, that it will attract a stern punishment. The final consideration is that a sentence of immediate imprisonment would ordinarily be warranted.
42In this case, the material that is the subject of the Commonwealth charge was accessed by you over a period of approximately nine months and in excess of 2300 images downloaded. That places it in my view well above the lower levels of seriousness for this offence, but I am aware that there are cases where there are much greater quantities with much more - with almost constant access being gained and that the periods last for longer.
43I do not infer that the images included any of the worst level of child exploitation or depravity, but do infer that the number of images over the period will have involved very considerable numbers of children being exploited for the trade in such images. I accept that there is nothing to indicate that you intended to sell any of them, that you stood to make any profit from any of them, nor that you even intended to distribute them further. However, one of the reasons that general deterrence is so important is that even the person who accesses such material solely for personal gratification and not for profit, encourages and provides a market for those who do directly procure children for this exploitation.
44I have already mentioned that you have admitted a prior criminal history. I do not regard your first court appearance as of any significance in this case. That was in March 1995. However, in September 1996 you were sentenced on a charge of indecent assault to three months imprisonment which was wholly suspended for two years. In addition, you were sentenced to a community based order under which you were to perform 500 hours of unpaid community work and to participate in a sex offender assessment program.
45Only six months later you were before the Moe Magistrates' Court again and sentenced on 11 charges of indecent acts with or in the presence of a child under 16, and four offences involving causing injury. I am told that those offences all related to the three girls who were then your step-daughters, and a charge of committing indecent acts in the presence of one of their friends. You were sentenced to a total of 24 months' imprisonment with an 18 month minimum period before parole. Before you were paroled you were interviewed in relation to further charges of your sexual conduct with those same three step-daughters, which resulted in further charges including some of incest.
46Those charges all came before Judge Crossley in the County Court in September 1998. There were charges involving indecent acts with each of these three step-daughters, incest in relation to one of them, and attempted incest in relation to another, and a charge of intentionally causing injury to one of them which, I am told resulted in her leg being broken when she was eight years old.
47His Honour Judge Crossley had to adjust his sentences to take into account the principle of totality, because he had before him a situation where you were still serving the previously imposed sentence which was for offences against the same three victims, and the fact of the total time in prison that you would have to spend for that combination of charges had to be a significant factor in his sentence.
48The total sentence he imposed was four years and six months' imprisonment, with a non-parole period of two years and three months. I am told that you were not immediately paroled when that minimum term was reached and, in fact, served a little over three years and one month of His Honour's sentence, being released on parole on 23 October 2001.
49That sentence expired on 21 March 2003. It was some time later in 2003 that you met the mother of the victim of the charges with which I am dealing.
50I am told that during your term of imprisonment for the previous charges you did undergo a sex offender program, but that you concede you did not fully engage with it, attending for the purposes of fulfilling your pre-conditions for obtaining parole, and it is clear to the extent that you did attend and engage with that program that you did not sufficiently learn the lessons you needed to learn from it.
51I am told that you now say that you do realise that you have a problem in your attraction to young girls, and that you need help addressing it so as not to re-offend in the future. You say that you are now willing to fully engage with sex offender programs that will presumably be offered to you after you are sentenced by me.
52You were arrested for all of this offending on 3 February last year and have remained in custody ever since. You were initially in police cells at Portland and Warrnambool, but then transferred to Metropolitan Remand Centre where you have been a protection prisoner.
53I am told that being there you have been part of the Forensicare Mobile Mental Health Care Program which has resulted in your seeing a psychological counsellor once a week for about two months at the end of June, and that that has since resumed. I am told that you have during your time on remand been prescribed an anti-depressant medication which is having a positive effect on you.
54I have taken into account that by serving the time you have as pre-sentence detention in a protection unit that will necessarily have been more restricted than had you been in the general prison population, and therefore it is likely to have made your time there more onerous. That being so, I have taken into account in mitigation of your overall sentence that that time will have been more onerous than the strict number of days that will be declared as reckoned served towards your sentence.
55Whilst you have been in custody, you were examined by Ms Carla Lechner for the purposes of a psychological report. She took a personal history from you, some details of which I shall repeat shortly. She reported that you fulfil the criteria of a diagnosis of paedophilic disorder. She notes that it has taken until your current period of incarceration for you to acknowledge your psycho-sexual disorder.
56You have previously undergone the sex offenders treatment program but admitted to her that you were going through the motions rather than accepting responsibility for your condition. You have told her that you are now prepared to properly engage in the therapeutic process.
57She considered when she examined you that you were showing symptoms of an adjustment disorder with depression reactive to your current situation and the true realisation of your problems. She thought that you would benefit from psychological support in custody, and on your release into the community.
58She assesses you as at moderate risk of re-offending although she did not explain the methodology for that assessment.
59She found you polite and co-operative at interview, and appearing to welcome the opportunity to unburden yourself. You told her of a past suicide attempt in 1996 just before you were charged with the offending against the previous step-daughters. She considered that the depression you were displaying was reactive not only to your current situation - that being in prison and the then pending court hearing - but also the realisation that your offending represents a serious disorder.
60She did not formally assess your intellectual capacity but it appeared to her that you were of low average intelligence but with the capacity to reflect on the impact that your behaviour has had both on yourself and others.
61She elicited that there was no relationship between your offending and any misuse of drugs or alcohol. She describes you as acknowledging your role in the offending, making no attempt to shirk responsibility or minimise the seriousness of your actions, and describing your own behaviour as disgusting because you knew it was wrong and because it is wrong for adults to have sex with children. You told her you knew adults are responsible for bringing up children. You acknowledged to her that you had been in denial when you had thought it was not your fault because there would be no harm on account of victims not being your biological children.
62Ms Lechner records you as saying that you began accessing pornography when linked to the internet in about 2001, but I do not infer from that anything more than the period in respect of which there was access to child pornography.
63At the time Ms Lechner examined you in July last year in anticipation of what was then to be the next circuit sitting, she described your depressive symptoms as falling into the extreme range giving rise to a diagnosis of clinical depression, and she recommended that you be assessed as to whether you needed an anti-depressant medication. That has occurred in the meantime, and I am told that the anti-depressant medication has helped as has the regular counselling from the mobile Forensicare unit. Ms Lechner also considered that you would benefit from assessment and treatment by the Sex Offender's Program and considered it was imperative that that support continue for an indefinite period upon your release from custody.
64Although a written outline of submissions on your behalf had indicated that what are known to lawyers as “Verdins principles 5 and 6” would be relied upon, that part of the submission was not pursued before me because it was conceded that the evidence now is that the counselling and medication you have been receiving in custody for your depression has been beneficial, so ongoing custody is unlikely to worsen that condition or make it more onerous for you than for other people not suffering from such a condition.
65The strongest mitigatory consideration in your case is that you have pleaded guilty to these charges in circumstances which do entitle you to significant reduction in your sentence. As was stated in the Court of Appeal in the case of Reid (a pseudonym) v R at [11], there is a powerful public interest in giving recognition to a plea of guilty even in the face of a very strong prosecution case.
66You were co-operative when interviewed by police in respect of the pornography charges, providing passwords and user names to allow them to access your computers, although you seemed to be saying that other people including your son have access to the computers and you did deny that you had been accessing any child pornography such as in questions and answers 117 and 170.
67Interviewed by police then about sexual activity with your step-daughter, you denied it in 2009, also asserting that you would not be treated fairly by the legal system because of your prior history. However, on 3 February 2015 when interviewed by police after the discovery of the images on your computers, you were asked about the sexual activity with your step-daughter and you said that there was no sexual misconduct when she was a child, but you did admit to such activity since she had returned to your house after turning 18. You said you did not see her as a daughter and did not regard it as wrong because there was no blood relationship. You did, however, say that you knew it was wrong although you say you did not know it was illegal.
68You admitted sending her naked photographs of yourself, and there being photos taken by you in your drop box which you said were not to be shared with anybody else, but you wanted to look at them and you said you stored them “like trophies”.
69At the second committal mention of this case, only four months after your arrest, the matter is said to have resolved with you indicating that you would plead guilty. There was some further negotiation at least as to factual matters in the prosecution opening, and the matter was adjourned when it was due to be heard in July. You were then arraigned and pleaded guilty on 31 August last year. Although there was no admission initially to the offending in 2004 when your victim was 11, and no initial admission of accessing or storing or possessing child pornography, I still take you to have pleaded guilty at a relatively early stage.
70I note that the utilitarian value of your plea in saving the community the time and cost of disputed hearings was high in that there were no hearings scheduled at which witnesses were required to attend. You have spared all witnesses and in particular the victim of these offences from having to appear and give evidence and re-visit events from when she was aged 11, and be cross-examined about them.
71I take your pleas of guilty also to reflect that you have now accepted responsibility for your offending and shown a willingness to facilitate the course of justice.
72I am urged to take your plea of guilty also as a reflection of your remorse. I accept that your pleas of guilty are consistent with some other signs of remorse such as what you told Ms Lechner. When interviewed by police you made some comments – you said that your head is so messed up. You said that sometimes you wish that you could take your brain out and swap it with someone else's so you could be normal, and you said about what allowed you to go that step further knowing this young girl was your step-daughter, "That's the part of my head that I hate" and that you did not understand it yourself. Whether there is truly remorse for your victim in these expressions is impossible for me to say, but I do accept that there are some expressions of real regret by you that show some reflection of remorse. Undoubtedly, you regret the situation in which you now find yourself, and see that you have serious and underlying problems to address if you are not to repeat such offending in the future once released from prison.
73I turn now to your personal background. You are now aged 47. Your parents separated, I am told, when you were aged 6, and apparently the atmosphere in the home that you remember is of aggression, shouting and tension pervading the home.
74You are said to have entered primary school as a fragile child and had a relatively poor academic record, both factors leading to you being bullied extensively at primary school and that continued into secondary school.
75You are now effectively estranged from all of your own family. You have been estranged from your mother since the 1998 charges, and I am told that since age 18 you have not had contact with your father after an argument about a loan. You also do not speak to either of your siblings.
76You left home aged 17 and drifted into early adulthood living in Dandenong, working as a labourer, and also engaging in some drug use in your late teens although not for the last couple of decades.
77You have two children of your own - a son with whom you had contact until being arrested for these offences, and a daughter with whom you were, by then no longer in contact. Their mothers have died.
78You had an eight year marriage in the 1990s to a woman who was the mother of three daughters being the victims of your previous offending.
79In combination, you served over four and a half years in prison for those offences before being paroled. The last sentence expired in 2003 and as I have already said, it was later that year that you met and subsequently commenced a relationship with the mother of the victim of these current charges. You continued to live with her in a relationship after her two daughters were removed as children by the Department of Human Services in 2004. You married her in November 2008. I was told by your counsel that you wanted me to know that she is still in communication with you. As you seem otherwise totally isolated from contact with people outside, that may be to your benefit. Whether she remains in touch with you is up to her. From her Victim Impact Statement in the present proceeding she says your marriage is over. As I have said, I have generally given little weight to her Victim Impact Statement.
80General deterrence and specific deterrence and denunciation of this type of conduct are obviously very important sentencing factors in your case as well as just punishment.
81I must also take into account that you fall to be sentenced on all charges as a serious sex offender having been declared that by His Honour Judge Crossley in 1998. There can be no question - and it is conceded on your behalf - that a term of imprisonment is justified, and indeed the only appropriate form of sentence.
82That means, as you fall to be sentenced as a serious sex offender, that pursuant to s.6D of the Sentencing Act in determining the length of your sentence I must regard protection of the community as the principal purpose for which the sentence is imposed.
83There is simply inadequate evidence in this case to indicate that a disproportionate sentence is required to protect the public.
84As you fall to be sentenced as a serious sex offender for each of these offences the sentences are required under s6E to be cumulative except to the extent that I order concurrency. There will be a considerable amount of concurrency in this case. In particular to allow for the principle of totality. That means that the overall offending for which the overall ultimate sentence is imposed must be considered, and that the sentence should be not so crushing as to remove any hope for you to set your sights on for the future.
85In my view, although certain offending can be grouped together, as I have said, there are three distinct courses of conduct which require recognition and the issues of cumulation or concurrency I have taken into account in that regard.
86Owing to technical difficulties which you heard me discuss with counsel at the outset of today’s hearing, between sentencing on Commonwealth and Victorian charges, I cannot impose a sentence on Charge 9, the Commonwealth charge, which would be partly concurrent but partly cumulative on the State sentences. For that reason, I have moderated the sentence on Charge 9 and will impose it in a manner that will make it wholly cumulative on the State sentences.
87For this reason, I have decided that I will order total concurrency for the two State charges of possession of child pornography, because in my view the six months I am going to impose which will be cumulative for the Commonwealth sentence is a suitable period of cumulation to take into account all three of the separate child pornography charges, all being discovered at the same time and relating to similar although not identical period of offending. Some - the Victorian ones - are not alleged to have lasted as long as the Commonwealth one.
88Would you stand up now please, Mr Hopson.
89Ivor Hopson, on each of the charges you are convicted and sentenced as follows: On Charge 1 of indecent act with a child under 16, three months' imprisonment. On Charge 2, eight months' imprisonment. On Charge 3, four years’ imprisonment. On Charge 4, four years and ten months' imprisonment and that becomes the base sentence. On Charge 5, four years' imprisonment. On Charge 6, four years' imprisonment. On Charge 7, four years' imprisonment. On Charge 8, four years and six months' imprisonment. On Charge 9, six month's imprisonment to commence at the conclusion of the State sentences. On Charge 10, three months' imprisonment and on Charge 11, two months' imprisonment.
90I direct that all but six months of the sentences imposed on Charges 3, 5, 6 and 7, and eight months of the sentence imposed on Charge 8 be served concurrently with the sentence imposed on Charge 4 and with the sentences imposed on each other charge.
91I direct that the sentence on Charge 9 commence at the conclusion of all of the state sentences so the effect will be that it will be served wholly cumulatively on their total.
92That is intended to create a total effective sentence of eight years' imprisonment. I fix a non-parole period of five years and nine months. I declare 409 - I didn't check that. Is it 409 days ‑ ‑ ‑
93MR TRIANDOS: Yes, Your Honour.
94HER HONOUR: ‑ ‑ ‑ of presentence detention up to but not including today as reckoned served that comes off the head sentence and the non-parole period. That will be deducted administratively from both the head sentence and non-parole period. I direct that that be recorded in the court records.
95I declare that pursuant to s.6F of the Sentencing Act of Victoria that you are being sentenced as a serious sex offender on all charges.
96I state pursuant to s.6AAA of the Sentencing Act that if you had not pleaded guilty but had been found guilty of each of these charges after a trial I would have imposed a total effective sentence of 12 years' imprisonment with a non-parole period of eight and a half years.
97By operation of law you will be placed on the sex offender register. That will be for life. Your reporting obligations will be for life. My associate will shortly bring you the documentation to outline that to you and you will be asked to sign the piece of paper acknowledging you have received that notice.
98You can take a seat now Mr Hopson while I first check and it does need to be carefully checked because of the difficulties - the matters that I have outlined earlier. The technical difficulties with structuring it, that that does add up to what I have said is intended. If both counsel would like to take a moment to check? Do you say I need to announce the State separately as a total effective sentence?
99MS BROUGHTON: No, no, I am just in terms of the way Your Honour specifically worded that the Commonwealth sentence commences at the end of the State head sentence. Your Honour probably said that. I would just - just make sure that that ‑ ‑ ‑
100HER HONOUR: I think I said it twice but that - that will be in the order - the - what I have ordered is concurrency except for six months on four of the charges and eight months on another. That is only though - covers the State sentences so the total effective sentence of the state sentences is seven years' six months.
101MS BROUGHTON: Yes.
102HER HONOUR: With a non-parole period of five years, nine months. The six month Commonwealth sentence is to commence at the expiry of the head sentence of the State sentences and that will have the effect of adding six more months to the head sentence.
103MR TRIANDOS: Yes, Your Honour.
104MS BROUGHTON: I think that adds up.
105HER HONOUR: It technically - these are ‑ ‑ ‑
106MR TRIANDOS: We're just not sure if Your Honour had mentioned the words, "head sentence" when Your Honour was reasons, that's all.
107HER HONOUR: Well, I think it has that effect. I said - I thought I did but if you wanted to ‑ ‑ ‑
108MR TRIANDOS: It's clear now, Your Honour.
109HER HONOUR: Or total sentence, total of the State sentences may be a more technical word than "head".
110MS BROUGHTON: Yes, I think that's clear now, Your Honour.
111HER HONOUR: Not sure about that either. Ms Broughton, this is the notice of the reporting obligations under the Sex Offender Registration Act. I'm sure your client will be given more information or reminded of what that actually means before he is released ‑ ‑ ‑
112MS BROUGHTON: Yes.
113HER HONOUR: ‑ ‑ ‑ from prison but does he get the original of the notice or a copy today? He has got to sign acknowledgement of receipt if - well, sorry, he will be asked to sign acknowledgement that he receives the copy. I think it is the original that goes to him but we need a copy of what he has been given.
114MS BROUGHTON: As long as he has - yes, the information.
115HER HONOUR: All right, I have signed that notice. My Associate will take to Mr Hopson that for him to keep but also a document that he is asked to sign acknowledging receipt.
116MS BROUGHTON: Yes, Your Honour. Your Honour, at the conclusion of the hearing last Thursday I mentioned that he had done some courses in custody but I did not have the certificates at that time. I have them now. I should have mentioned this prior to Your Honour's - it doesn't change anything, it's just ‑ ‑ ‑
117HER HONOUR: Well, the problem is to mark something as an exhibit after I have delivered my sentence is complicated.
118MS BROUGHTON: Annoying and complicated, yes.
119HER HONOUR: I haven't mentioned absolutely everything I was told about your client but I think I have over all covered - I believe I have covered what I needed to cover.
120MS BROUGHTON: Yes, you did mention the programs in custody, yes.
121HER HONOUR: So that I - the fact that I didn't see the certificates - I wasn't going to doubt that there had been some.
122MS BROUGHTON: No. As Your Honour please.
123HER HONOUR: And just to make it very clear, at the end of the day general and specific - general deterrence has to be paramount so even forms of rehabilitation such as a willingness to do courses can only be taken into account in general terms and subordinate to the primary sentencing factors which also for the length of time include protection of the public.
124MS BROUGHTON: Yes, Your Honour.
125HER HONOUR: Mandated under s.6E. Both counsel, in terms of the class of offence under the Sex Offender Registration Act each charge of incest is clearly Class 1 but we take it that the indecent acts with child under 16 are Class 2.
126MR TRIANDOS: Yes, Your Honour.
127HER HONOUR: What have we done about the child pornography ones? I don't know that they come under the Sex Offender Registration Act but they are relevant offences for the s.6E cumulation issue.
128MS BROUGHTON: Yes. If I could accompany Your Honour's associate?
129HER HONOUR: Yes, certainly, certainly. Something to raise? I have forgotten the forfeiture ‑ ‑ ‑
130MR TRIANDOS: There's the disposal order.
131HER HONOUR: The disposal order that I just noticed my associate had picked up for me.
132MR TRIANDOS: Also, the Charges 9, 10 and 11 are also Class 2 offences, Your Honour. That's all. That doesn't change anything but ‑ ‑ ‑
133HER HONOUR: They are Class 2 offences.
134MR TRIANDOS: Once again, my instructor, Your Honour.
135HER HONOUR: That's the issue, whether Charge 9 is a Class - is a reporting offence under the Sex Offender Registration Act. It's a Commonwealth charge and I'm not - --
136MR TRIANDOS: I'm just checking. My instructor seemed to think that it's under Schedule 2, Your Honour.
137HER HONOUR: That includes Commonwealth as well as State; does it?
138MR TRIANDOS: Yes.
139HER HONOUR: Well, all right. In that case it would be. It's certainly of the same nature.
140MR TRIANDOS: Yes, Your Honour.
141HER HONOUR: Now the other matter I'm just trying to work out here is whether I have to specifically - we're just dealing with the actual formalisation of the orders and I've just realised we're still connected to Warrnambool. Do we need - is there any ongoing need for that?
142MR TRIANDOS: No, Your Honour.
143HER HONOUR: I think we're just going to have the documentation finalised and then I will be adjourning. So, I think we could cease the connection with Warrnambool now. Thank you.
144I have checked those orders. I do think they achieve what I intended but you could get a chance to check them again and it can be changed but I am going to leave the Bench now and ‑ ‑ ‑
145MS BROUGHTON: As Your Honour pleases.
146MR TRIANDOS: As Your Honour pleases.
147HER HONOUR: If you have any issues with it - I have given a lot of time to it and my associate has too as to how to convince the computer to produce the right orders. All right. Do you want Mr Hopson kept here just so you can talk to him now?
148MS BROUGHTON: That would - yes, thank you.
149HER HONOUR: I will leave the Bench and let that occur. There is no-one else in the court room and I will ask that Mr Hopson just be kept here for a few minutes to let his counsel talk to him.
150MS BROUGHTON: Thank you, Your Honour.
SENTENCE CONTINUED ON FRIDAY 8 APRIL 2016
1HER HONOUR: All right.
2In those circumstances, and as I have said, I am satisfied I have the power to make the corrections to make the orders comply with what I stated was my intention.
3I leave all of the actual sentences imposed the same as I announced them on 18 March. I direct that Charge 9, which is the Commonwealth charge, commence on 18 March 2016. I direct that all but seven months of the sentences on each of charges 3, 5, 6 and 7, nine months on Charge 8, and one month on Charge 10 be served concurrently with the sentence imposed on Charge 4, and with the sentence imposed on each other charge.
4Now, that creates a total effective sentence of eight years' imprisonment. I do not change the fixing of five years nine months as the minimum term to be served before eligibility for parole, and I don't change the declared amount of presentence detention reckoned served, because this is an amendment to an order that started on 18 March.
5MR TRIANDOS: Yes, Your Honour.
6HER HONOUR: Now, both sides take a moment to work that out. What I think I've done is, by increasing by one month the cumulation on five charges and adding a bit of cumulation for one State child pornography charge to give that flavour to the sentence so to speak, the total should be eight years, with a non‑parole period then of five years nine months. We don't have you, Mr Triandos, on our TV pictorially, but you're still there. Okay. Good.
7MR TRIANDOS: I agree with those figures, Your Honour.
8HER HONOUR: Does that work?
9MR TRIANDOS: I can't speak for ‑ my instructor's in Melbourne, so unless she's got a different view ‑ ‑ ‑
10HER HONOUR: If she would just nod to us or something that it works? Yes, she's nodding.
11MS BROUGHTON: We're all in agreement.
12HER HONOUR: Everyone's in agreement, and you're in agreement, Ms Broughton?
13MS BROUGHTON: Yes, Your Honour.
14HER HONOUR: All right. I'm sorry to be the schoolmarm here about this, but it is not an easy structure, and the purpose is to try to get it to work as I intended. If everybody's satisfied that this should now be so, the order will be amended in those terms, and forwarded in due course to everybody concerned.
15MR TRIANDOS: If Your Honour pleases.
16MS BROUGHTON: As Your Honour pleases.
17HER HONOUR: All right. Mr Hopson, I'm sorry you have had to sit through a lot of legal jargon and mathematics, but the effect is still what I told you on 18 March I intended. You have a total sentence of eight years' imprisonment and will be eligible for parole after five years nine months, and 409 days that you had been in custody up to the 18 March is reckoned served. It's just that all these orders will be dated 18 March. Do you understand?
18OFFENDER: Yes, Your Honour.
19HER HONOUR: All right. Do you want the chance, Ms Broughton, to have a minute or so with your client?
20MS BROUGHTON: If I could, very briefly, yes.
21HER HONOUR: What I'll do is ‑ thank you, Mr Triandos, I know you've got to clear from that court, or that another matter is coming on there.
22MR TRIANDOS: Yes.
23HER HONOUR: We'll disconnect to you.
24MR TRIANDOS: Thank you, Your Honour.
25HER HONOUR: I'll leave the ‑ we're still seeing him, I don't know if it's disconnected yet ‑ but I don't want to disconnect from Mr Hopson yet, the prison. He's gone, all right. They've disconnected at their end. All right. I'll leave the bench and let you have a quick word, and I'm sure the Crown instructor will too, to let you have a word with your client.
26MS BROUGHTON: Thank you, Your Honour.
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