Director of Public Prosecutions v Horton (a pseudonym)

[2017] VCC 1859

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

HUDSON HORTON (a pseudonym)

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 December 2017
CASE MAY BE CITED AS:	DPP v Horton (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 1859

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Fitzpatrick
For the Accused	Mr J. Hofman

HER HONOUR: 

1Hudson Horton[1], you have pleaded guilty to six charges of incest.  The maximum penalty for each offence is 25 years' imprisonment.  Further, you have consented to the uplifting of two summary charges.  Charges 1 and 2 are both charges of breaching a family violence intervention order.  The maximum penalty for each offence is two years' imprisonment.

[1] Hudson Horton is a pseudonym.

2The facts which found the charges are as follows.  The two victims in this matter are your two eldest daughters, born on 1 January 1996 and 1 January 2001.  The victims are now aged twenty-one and sixteen respectively. 

3You have pleaded guilty to five charges of incest relevant to your oldest daughter and one charge relevant to your younger daughter.  The period of your offending spans some nine years.

4Charge 1 is a representative charge of incest founded upon digital/vaginal penetration of your eldest daughter at the family home.  The charged act is representative of three other occasions of such penetration.

5Charge 2 is a representative charge of incest founded upon penile/vaginal penetration of your eldest daughter at the family home.  The charged act is representative of two other occasions of like penetration. 

6Charge 3 is a representative charge of incest involving penile/vaginal penetration of your eldest daughter at your workplace.  The charged act is representative of three other occasions of similar penetration.

7Charge 4 is a charge of incest in relation to a single occasion of penile/vaginal penetration of your eldest daughter in your motor vehicle.

8Charge 5 is a representative charge of penile/vaginal penetration at a hotel.  The charge is representative of another occasion of penile vaginal penetration in similar circumstances.

9Charge 6 is a course of conduct charge of incest involving digital penetration of our younger daughter.

10By way of background.

11You came to Australia in 2001 and you were not joined by your wife and children until 2006.  You began abusing your elder daughter in 2007 at the family home when she was aged between ten and eleven years.

12Charge 1 is founded upon an evening in 2007 when you forced the victim to remain with you on the floor in the lounge room while the rest of the family went to bed.  You began showing her how to operate a new mobile phone before placing your hand down her pants and touching the outside of her vagina.  You then penetrated her vagina, moving your fingers in and out for a few minutes.  The victim told you it was hurting.  You replied, "It's okay, it's normal".  That charged act is representative of three other occasions as detailed in paragraphs 19, 27 and 29 of the amended prosecution opening.  I do not propose to recite those events in full now but I direct that a copy of the opening be annexed to these reasons for sentence. 

13The act which founds Charge 2 occurred between 1 and 31 December 2009, within a few days of the family moving to a new home.  As your eldest daughter was getting everything out of the car, you went to your bedroom and started calling for her to join you.  She walked to the bedroom, where you grabbed both her arms, and she fell onto the mattress which was then on the floor as the bed had not yet been assembled.  As she fell, you lay on top of her and started touching her breasts under her clothing and trying to kiss her.  You placed a hand in her underwear and said, "Don't worry, I have a condom, everything will be all right".  You removed her pants, pulling them away from her before removing your own pants and opening a condom packet with your mouth.  You fitted the condom on your penis, knelt down between the legs of the victim before holding them over your own shoulders.  After digitally penetrating her, you put your penis into her vagina and had sex with her for a number of minutes.  It is the penile vaginal penetration which founds Charge 2, incest.  This charge is representative of two other occasions which are detailed in paragraphs 22 and 30 of the amended prosecution opening. 

14Charge 3 is a charge of incest and relates to a period in 2007 when the victim joined you at your workplace where you were engaged in some cleaning activities.  After a few hours of assisting you with cleaning, your elder daughter went into the changing room.  Once she was undressed, you entered the change room and commenced touching her while trying to kiss her.  You subsequently put some clothing onto the ground in the shower area and told her to lay down.  She felt compelled and lay on her back, wearing only her top.  You then leant down with your knees between her legs and lifted them onto your shoulders.  You began touching her between her legs before inserting your finger in and out of her vagina for two or three minutes.  You then inserted the tip of your penis, and when she felt it start going inside her, she said it really hurt and started screaming.  You said, "It only hurts once" before fully penetrating her with your penis.  It is this penile/vaginal penetration which was the first instance of such conduct which founds Charge 3.  Charge 3 is representative of three further occasions as detailed in paragraphs 24, 25 and 26 of the amended prosecution opening.

15Charge 4 is a single charge of incest.  It occurred between 1 January and
31 December 2007 in a white Toyota vehicle which was owned by you at the relevant time.  On this occasion the victim had been with you at your workplace, cleaning with you, and on the way home in the vehicle you stopped on an unlit road.  You showed her pornography and began touching her breasts and vagina, both over and under her clothing, before inserting your fingers into her vagina.  You then instructed her to get into the backseat of the vehicle and warned her that if she did not comply you would get angry.  You removed her pants, leaving her naked from the waist down.  You had, by this stage, obtained a condom.  As she lay on the backseat, you removed your own pants and started kissing her body, lifting up her top, at the same time inserting your fingers into her vagina.  You then stopped touching her and opened the condom before lifting her legs above your shoulders and inserting your penis into her vagina.  You said, "It will only take a second or two."  The victim felt ashamed and acted like she was dead, not moving for two or three minutes until you had finished.  It is the penile/vaginal penetration on the backseat of the vehicle which founds the charge. 

16Charge 5 is also a charge of incest which occurred between 1 January 2008 and 31 December 2009 when your elder daughter was 12 or 13 years old.  On this occasion you took her to a motel.  Inside a room you instructed her to undress.  She refused, but you forcibly removed her clothing before removing all your own clothing and lying down next to her on the bed.  You were rubbing your body on hers and she could feel your erect penis against her thigh.  You then obtained a condom from the pocket of your pants, placed it on your penis and knelt down between her legs, holding them over your shoulders.  You inserted your penis into her vagina.  It is this penetration which founds the charge.  This occasion is representative of one further occasion as detailed in paragraph 21 of the amended copy of prosecution opening.

17Charge 6 relates to your younger daughter.  It is a further charge of incest put on a course of conduct basis.  This victim was aged around eight years old.  On an occasion between 1 January and 31 December 2010 you took her to a hotel.  There, in a small room, you said that you would show her a surprise.  You began to touch her body and breast before removing your pants.  You pushed her onto the bed, exposing your penis.  You tried to force her to touch your penis but she refused and tried to get away.  You then removed her pants by force before inserting your fingers into her vagina.  You then left the hotel together.  You tried to bribe her, telling her that she could buy anything she wanted.  She was too scared to tell anyone in relation to the incident.

18There was a further occasion when the victim was in Grade 4.  You took her to the laundry room in the house, where you removed her pants by force and again inserted your fingers into her vagina.

19On another occasion between 1 January and 31 December 2014, while you were driving the victim home from a medical centre, you forced her hand onto your erect penis over your pants.  You stopped the car on a deserted road and asked her to get into the back with you.  You began to remove your pants and she was begging you to take her home, but you threatened that you would leave her there unless she got into the backseat with you.  You pushed her onto the seat of the car before again inserting your fingers into her vagina.  She said she was sick, so you stopped and continued driving.

20In January of 2016 the younger victim observed her sister upset and crying in her bedroom.  It was at this time that the two victims spoke for the first time in relation to how you had been sexually abusing both of them for many years.  About a week later your older daughter told a doctor about the years of sexual abuse relating to both herself and her younger sister. 

21On 8 February 2016 the older victim and you had some sort of verbal dispute.  She threatened to tell her mother about the sexual abuse.  You put your finger to the front of her lips and then drew it across your throat.  This caused the victim to fear because you had made threats to kill her and her family should she tell anyone.

22On 9 February 2016 you drove the older victim to a train station so she could go to university.  On the way there you told her that you knew about her plan and you again threatened family members in Afghanistan.  Later that day you rang and made further threats.  It was following this conduct that your older daughter attended the Narre Warren police station and reported your offending.

23You were arrested and interviewed on Wednesday 10 February 2016.  You made no admissions in relation to the matter.  Subsequent to that, on 2 March a family violence intervention order was issued at Dandenong Magistrates' Court protecting the two victims. 

24On 4 March, after being served with the order, you met your wife and son at the Melbourne Children's Court custody area.  There you spoke to them about your living conditions in custody, describing them as terrible.  You asked your wife and son to ask your daughters to get you out of gaol and to tell them that you were suffering a lot in gaol and always hungry and scared.  The victims' mother conveyed the messages to the two victims.  To her credit, your elder daughter contacted the police advising that the messages had been sent.

25This type of offending is, by its very nature, serious and the law in this area is designed to protect the children of our community.  You had particular obligations to the victims in this matter who were your daughters.  They were entitled to trust you.  You grossly breached that trust on an ongoing basis.  This was not isolated offending or a single lapse of judgment, this was prolonged, calculated offending by a man who can only be described as a sexual predator.

26You have no prior convictions or appearances and you fall to be sentenced on the basis that you are, apart from this matter, a man of good character.  It is, of course, relevant that this was not isolated offending and spanned some nine years.

27Tendered as Exhibits 1 and 2 upon the plea are two victim impact statements from your daughters.  I had the advantage of having the statements read by one of the victims and the other by the prosecutor when this matter was last listed in November.  Both your daughters presented as brave, capable young women who have endured the unendurable.  You have robbed them of their childhood, you have robbed them of their security, you have robbed them of their extended family.  The effects for both victims have been devastating and pervaded all aspects of their lives.  The overwhelming theme of the victim impact statements was that these brave young women now feel that they are finally “free”, and by free, they mean free from you.  What is contained in their victim impact statements are highly personal accounts of trauma.  I do not propose to recite them in these sentencing remarks but I direct they be maintained on the court file.

28The effects of your offending are not surprising and would, or should, have been appreciated by you at the time of your offending.  This type of offending against the most vulnerable members of our community has long-term adverse consequences as is demonstrated in this case.  It is to be hoped that these proceedings and the public acknowledgement of your wrongdoing will assist the victims to move forward and heal from that which they should never have endured.

29I have received a report dated 29 October 2017 from Mr Ian McKinnon, a forensic and consultant psychologist.  Mr McKinnon assessed you as meeting the criteria for a disorder of sexual preference, incestuous paedophilia/hebephilia, and further, for a depressed mood disorder. 
Mr McKinnon assessed your functional intelligence at the lower end of the normal adult range.  It was his opinion that your psychological development was complicated by several developmental difficulties including firsthand exposure to the Afghanistan conflict and general traumas associated with this and a head injury suffered in childhood for which no medical details were available, together with a complete lack of formal educational experience and consequent illiteracy and sociocultural problems associated with your journey as a refugee which included prolonged separation from your wife and children from 2001 to 2006 and a permanent separation from your family in Afghanistan.  It was further his opinion that the current proceedings and your imprisonment and total estrangement from your wife and children have made some contribution in this regard. 

30Mr McKinnon opines that you appear to possess only very limited general knowledge and that your conceptual thinking abilities are underdeveloped.  He noted that you do not appear to have a consistent set of moral beliefs.  He says that you only have a partial grasp of the ordinary meaning of right and wrong.

31It is Mr McKinnon's opinion that at the time of these offences you were probably suffering from symptoms that met the criteria for the two diagnoses he ultimately made, and he says that under the influence of these psychological disorders, your ability to reason and make sound judgment was significantly degraded.  He says further that other issues also made a contribution to your poor psychological development.  Nevertheless, it was his opinion that your incestuous, paedophilic and hebephilic attraction to your daughters was the primary motivation for your offending.

32He says that you do not appear to have ever felt appropriate empathy for your daughters' plight nor felt remorse over your sexual abuse of them.  Indeed, I note that you continue to maintain that you did not engage in the offending and were just pleading guilty so your daughters would be spared further distress (at least at the time of Mr McKinnon's assessment). I note that your daughters continue to report that you call them liars to extended family, which has been an ongoing cause of distress for them.

33Mr McKinnon says that you do not appear to have developed the moral and character traits associated with healthy and competent adulthood and the fact that you were abusing your daughters on an ongoing basis does not appear ever to have troubled you.

34Mr McKinnon says that you are likely to forever pose a significant risk of reoffending against children and adolescents beyond just family members.  He notes in this regard that your offending occurred over a very long time and involved multiple acts of abuse against your daughters when they were prepubescent and when they were post pubescent.  He notes that there does not seem to have been any significant break in the offending and that you have never sought help for this behaviour.

35Mr McKinnon opines:

"The long-term impact of him obtaining sexual gratification by multiple incestuous acts carried out against his two daughters over a period of several years on Mr Horton’s deviant psychosexual character is likely to be lasting and very difficult to extinguish."

36It is Mr McKinnon's opinion that the likelihood of such reoffending will be heightened in opportunistic context when children are accessible and alone with you, whether they are family members or not.  He says you are unlikely to benefit much, if at all, from sex offender therapy and that your lack of empathy and associated amorality and immorality suggest that you will struggle to make significant rehabilitative progress.

37It is Mr McKinnon's opinion that you are more likely to respond to libido-lowering medication treatment and punitive responses such as imprisonment and close supervision.  He says, nevertheless, your long history of serious offending suggests you will continue to pose a significant risk of reoffending once you return to the wider community. 

38It is Mr McKinnon's opinion that should you have a parole order imposed upon you, you would have reasonable prospects of maintaining yourself appropriately for the duration of the order.  However, without intensive and ongoing strict supervision in the wider community, he says you appear to pose a high risk of reoffending.

39Mr McKinnon says that should you be imprisoned for a significant term, you appear able to cope satisfactorily enough in a prison environment and that you have not presented with self-destructive and suicidal tendencies.  He says you appear to be receiving an appropriate level of medicated care at the Hopkins Correctional Centre.

40I turn to your personal circumstances.  You were born on 1 January 1977.  You were raised in a district in south-eastern Afghanistan.  You are one of five siblings.  You were raised by both parents.  Your father operated a grocery store and your mother was engaged in home duties.  You report never having been to school due to ongoing conflict within the country.  You are illiterate in both English and Dari.  You describe your childhood as never peaceful.  Your family, it seems, were always ready to flee in the event that the village was again attacked.  You have not had any direct contact with your family in Afghanistan for over ten years but you believe that your father has probably passed away.

41In 2001 you came to Australia as a refugee on a boat from Pakistan to Indonesia.  You were ultimately offered a protection visa.  You returned to Pakistan to get your wife and children, returning in 2006.

42Whilst in Australia, you have worked primarily as a butcher for some 16 years.  You married a woman who was your cousin, subsequent to arrangements having been made by your parents.  There are seven children of that relationship including the two victims. 

43As regards your health, you note that when you were ten years old you fell out of a tree and suffered a significant head injury.  You told Mr McKinnon that ever since that time you have suffered memory problems and confusions, especially in novel situations.  There is no evidence as regards this incident or the medical sequelae other than, of course, self-reporting by you.  Further, in relation to medical issues, you have a history of kidney problems and bladder issues, but both these seem to be currently managed. 

44You reported to Mr McKinnon that over the last few years, on some days you would smoke small quantities of cannabis, but it appears your major difficulty has been with alcohol.  You describe yourself as often going out to the shed at your home and consuming Blue Label Johnnie Walker and sometimes beer.  You told Mr McKinnon this would happen several times a week. 

45Since you were remanded in custody, you report that you have been attacked in prison some four times.  You have not received any personal visits and you spend much of your time at the fitness centre.  You are employed three days a week.  You do education two days a week.  You have completed programs whilst on remand.  I accept that you do suffer from isolation in custody due to the nature of your offending, language issues and lack of familial support.

46The prosecution submit that the only disposition open is an immediately servable term of imprisonment and your counsel quite properly concurs. I am satisfied, and it was not disputed, that as regards Charges 3, 4, 5 and 6, you will fall to be sentenced as a serious sexual offender if terms of imprisonment are imposed on Charges 1 and 2. I am thus required to have regard to the provisions of Part 2A of the Sentencing Act which require that I regard the protection of the community as the principal purpose for which sentence is imposed.  I may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of each offence considered in light of its objective circumstances. 

47Any sentence imposed on these charges must be served cumulatively unless otherwise ordered.  I have determined that in this case it is not necessary, nor appropriate, to achieve the protection of the community to impose a sentence which is longer than that which is proportionate to the gravity of each relevant offence considered in light of its objective circumstances. 

48The prosecution did not seek to make submissions in this regard and I have based my conclusions upon your lack of prior offending and the attitude of the prosecution.

49I direct it be noted in the records of the court that I will sentence you as a serious sexual offender on Charges 3, 4, 5 and 6 on the indictment. 

50I have been mindful in sentencing you that Charges 1, 2, 3 and 5 are representative charges.  I am required to sentence you on the basis of the conduct which founds each charge but I may have regard to the other occasions which you have admitted in coming to a view as to the gravity of the instant offence; that is, I may view the offence in a wider context disclosed by your admission of the other acts which are not the subject of the charge.

51This wider context is also relevant to assessment of your prospects of rehabilitation, which are, of course, affected by duration and frequency of prior conduct.  I emphasise, however, that I have sentenced you on the basis of the act which founds the charge to which you have pleaded in each case. 

52Charge 6 is a course of conduct charge, and in relation to that charge, I sentence you on the basis of the conduct to which you have pleaded. 

53These are without doubt serious offences.  I have no option but to impose immediately servable terms of imprisonment.  I have considered how the sentences should relate to each other, and I have had regard to, and applied, principles of totality and proportionality in coming to a view as to the appropriate orders in relation to concurrency and cumulation.  I have determined there should be some moderation and cumulation so the total effective sentence reflects the totality of your criminality.

54You are convicted and sentenced as follows:

55Charge 1, incest, six years.

56Charge 2, incest, seven years.

57Charge 3, incest, seven years.

58Charge 4, incest, six years.

59Charge 5, incest, seven years.

60Charge 6, incest, six years and six months.

61I direct that 18 months of the sentence upon Charge 3, 18 months of the sentence upon Charge 5, 12 months of the sentence upon Charge 1, 12 months of the sentence upon Charge 4 and 15 months of the sentence upon Charge 6 be served cumulatively with the sentence upon Charge 2 and upon each other. 

62You fall to be sentenced as a serious sexual offender in relation to Charges 3 to 6, so for the sake of clarity, and because you are being sentenced on that basis, I make it clear that I am directing that, apart from the cumulations I have ordered, all sentences are to be served concurrently.

63The total effective sentence is a sentence of 13 years and three months.  I direct that you serve ten years and three months before becoming eligible for parole.  I direct that 670 days be reckoned as served. 

64On the two summary charges, you are convicted and fined an aggregate amount of $750.

65Pursuant to s.6AAA of the Sentencing Act, I direct it be noted in the records of the court that were it not for your plea of guilty, I would have sentenced you to a total effective sentence of 15 years and six months with a non-parole period of 13 years.

66The prosecution make application pursuant to s.464ZF of the Crimes Act for an intimate forensic sample to be taken from you.  You consent to the making of the order.  I am satisfied it is in the interests of justice, having regard to the seriousness of your offending, to make the order.  I order that an intimate forensic sample be taken from you.  The sample may be taken by a doctor, nurse or other authorised person.  I inform you police may use reasonable force to enable that procedure to be conducted.  The sample is taken for the purposes of placement on the database.

67Further, I make an order pursuant to s.77(1) of the Confiscation Act for disposal of the items listed in the schedule, noting your consent to the making of the order. 

68Finally, it is conceded by your counsel that you have now been found guilty of six Class 1 offences.  The length of the reporting period is life.  In a moment my associate will provide you with documentation and ask you to sign an acknowledgement that you have received such documentation.

69Counsel, please check the cumulations, firstly.  Secondly, you will need to approach, Mr Hofman, in order to have the acknowledgment in relation to sex offender registration signed once it is printed.  You can have a seat, thank you, Mr Horton.  Just check the cumulations, though.

70Do you want me to repeat the sentence?  Has everybody got it?

71INTERPRETER:  (Indistinct words.)

72HER HONOUR:  Sorry?

73INTERPRETER:  The total sentence, can you repeat?

74HER HONOUR:   I am just having counsel check the cumulations, thank you.  I am happy to run through it again, counsel, if that is of assistance, once you have a chance. 

75So Charge 2 is the base, seven years.  Then you have 18 months on three and 18 months on five.  That is a further three years.  That is ten.  You add 12 months on one.  That is 11.  Twelve months on four.  That is 12.  Fifteen months on six.  That is 13 and three months.

76MS FITZPATRICK:  Yes, correct, Your Honour.

77HER HONOUR:  Everybody agrees?

78MR HOFMAN:  Thank you, Your Honour.

79HER HONOUR:  Yes, very well.  Thank you.  Mr Hofman, you may wish to approach with my associate.  The sex offender registration life order needs to be signed.

80Counsel, is there anything further?  Ms Fitzpatrick?

81MS FITZPATRICK:  No, Your Honour.

82HER HONOUR:  Mr Hofman?

83MR HOFMAN:  No, Your Honour.

84HER HONOUR:  Remove the prisoner, please.

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