Director of Public Prosecutions v Houghton (a pseudonym)

[2020] VCC 205

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

AT MELBOURNE

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL HOUGHTON (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2019
DATE OF SENTENCE:	4 March 2020
CASE MAY BE CITED AS:	DPP v Houghton (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 205

REASONS FOR SENTENCE

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Catchwords: Criminal Law – Sentencing – Incest – Young Victim – Stepdaughter- One charge of incest laid on a representative basis.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Hogan (For Plea) Ms S. Coulson	Office of Public Prosecutions
(For Sentence)
For the Accused	Ms M. O'Brien (For Plea and Sentence)	Balmer and Associates

HIS HONOUR:

1Daniel Houghton[1], on 18 March 2019 you pleaded guilty to a single charge of incest.  This charge is a representative charge.  The maximum penalty for the crime of incest is 25 years imprisonment.

[1] A pseudonym.

2The circumstances of your offending are set out in the prosecution opening dated 30 July 2019.  The prosecution opening was Exhibit A on the plea and forms part of these reasons for sentence.

3In brief, your offending occurred in the setting of your relationship with your former partner and her daughter, who was your then stepdaughter.

4You met your victim’s mother in September 2009. You commenced a relationship with her and moved into her home in Wantirna in early 2010.  You became engaged to her in 2011 and lived there until 2016. 

5Also living at the home was your victim and her younger brother.

6Between 2008 and 2012 the victim was your stepdaughter.  She was aged between eight and 12 years of age during the charge period. You offended against her by inserting your fingers into her vagina.  Two instances of offending behaviour of this nature are described in the prosecution opening.

7On one occasion the victim was in the lounge room watching the television when you walked in with your cup of coffee or tea and pulled her onto your lap.  You then put your hands down her pants and inserted your finger into her vagina.  She got up and told you to stop touching her like that and went into her bedroom.

8On another occasion when her mother was in hospital and your victim was aged around 10, you asked her if she wanted to come and watch TV with you.  It was late and she did not want to go to bed, so she agreed.  She was wearing pyjamas and lying on her back and you were lying on your side.  You put your hands down her pyjama shorts and inside her underwear and inserted one or two fingers into her vagina and moved them about.  This went on for a couple of minutes.  She moved your hand away and said she needed to go to the toilet and then said she was going to go to bed.  You asked her if she wanted to sleep in the same bed as you that night.

9It is common ground that the offending behaviour did not occur after 2012.  You continued in the relationship with your partner and continued living in the home as the victim’s stepfather until November 2016.  In November 2016, the victim told her mother what had occurred, and her mother immediately told you that you needed to move out and she then contacted the police.  The communication to you was by text message.  You denied molesting her daughter in your reply text message although there is evidence that in a conversation on the following day you admitted touching the victim once.

10You were interviewed in early November 2016.  You made some partial admissions however your answers were confused.  You denied any penetration.  You stated that it was not done intentionally.  The account you gave in your interview is consistent with accounts you have given subsequently which can be described as minimisation, if one is being most favourable to you.

11You were not charged until 26 January 2018.  The explanation for the delay between November 2016 and January 2018 is unclear.  A second VARE recording was made in May 2018.  You were further interviewed on 30 May 2018.  You were committed for trial on 11 September 2018.  There was a final directions hearing in this court on 12 December 2018.  Your trial was listed for 18 March 2019.  The matter resolved as a plea on that day.  You were arraigned and entered a plea of guilty on that day.

12There have been a series of adjournments of your plea hearing.  Your plea was to commence in August 2019 but was adjourned on your behalf for the reason of obtaining psychological material.  The matter was further listed for plea in December last year.  Prior to that hearing the matter was mentioned before me in the sexual offences list and an adjournment was sought of that plea date due to a lack of funding for you for your representation and due to your failure to attend for psychological examination.  I then listed the plea before me which took place on 20 February this year.

13The victim impact statement authored by your victim's mother, was read aloud in court and tendered as Exhibit B.  The impact upon your victim is severe.  The offending has also impacted upon her mother your former partner, in a devastating way.  It is not at all surprising that your victim has suffered the significant trauma she has as a result of your crime.  She is struggling to cope, her school life is suffering, she is struggling academically and emotionally and experiences suicidal ideation.

14The impact of this type of offending is well recognised.  Incest is often a crime where the vulnerable, who are worthy of protection, are exploited by those entrusted with their care.  It is a crime that is erosive of human relations.  Prominent features of the crime include the exploitation by the stronger will of the adult of the weaker will of the child; the physical and psychological subordination of the child to the perverted indulgences of the adult; the gross breach of trust placed in the offender by the victim and the community; and the irreparable and fundamental damage to the victim.

15Each of these features are present in this case. You were a father figure to your victim and the gross breach of trust has had lasting and devastating effects upon her.

16You have pleaded guilty to a representative charge.  This charge is representative of two instances of your offending in the same manner within the charged period.

17You fall to be sentenced for the offending the subject of a representative charge but not for the represented instances of offending.

18The represented instances of offending are not aggravating circumstances of the offending the subject of the charge. The fact that the charge is a representative charge enables this court to consider the offending the subject of the charge in its wider context including the court’s assessment of the nature and gravity of that offending, your moral culpability for that offending and the impact of that offending on the victim.

19The nature of the charge also precludes any moderation in sentence that may have been warranted if the offending, the subject of the charge, had been an isolated incident.  The number of represented instances is a relevant matter in the exercise of my discretion and I take into account the fact that there are two represented instances in this case.

20You are 40 years of age and have no prior convictions.

21You grew up in Johannesburg, South Africa where your father ran a textiles business.  You have a younger brother who you have been estranged from for the past six years.

22You were an active child and were involved in numerous sports.  As an adolescent, however, you experienced difficulties both academically and behaviourally.  I was told that you had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) as a child.  Your family migrated to Melbourne settling in Doncaster when you were aged around 16 years of age.

23You found it difficult to adjust to life in Melbourne and you missed your friends and extended family. You commenced a mechanic’s apprenticeship.  You have worked as a mechanic for the past 20 years.  I was told you have a solid work ethic and I accept that that is the case.

24You married Dianna McCleod[2] in 2003 and were divorced some four years later.  You have a son from that relationship.  Ms McCleod was present in court during your plea.  You live with her currently and she is supportive of you.  I received a letter from Ms McCleod tendered on your behalf.  The letter was in the form of a character reference and spoke to your reliability as a hard worker, as a partner and as a father of your son.  In her opinion you exhibit qualities of kindness and have a caring nature.

[2] A pseudonym

25You had another relationship in 2009 from which you have a son who is aged around 10 years of age.  Apparently, you do not have contact with him.  Between 2009 and 2016 you were in the relationship with the mother of the victim.  It was during this period that there was a break in your work history due to you working as a registered carer for your partner for some two and a half years during that relationship.

26I was told that you were close to your father who passed away in 2012.  You have regular phone contact with your mother who now lives in New South Wales.

27Your son resides with Ms McCleod’s mother.  He too has been diagnosed with ADHD.  He also has other health issues relating to heart and liver.  He too has had learning difficulties.  He resided with you for some time around 2015 and experienced some learning problems and transitioned to a community school.  He is described as an adolescent with complex needs.

28He has had difficulty accepting the reality of your situation and I am told he has been ‘acting out’ as a result of the knowledge that you will serve a gaol term.  This is in the context of him being affected by the trauma of his step-grandmother and his maternal grandfather being killed in separate road accidents in recent times.     

29I make reference to these incidents as part of the background in relation to your son’s circumstances insofar as they relate to your circumstances.  Beyond that, the matter has no relevance.

30I received two expert reports filed on your behalf.  The first was a psychological report prepared by Carla Lechner dated 29 July 2019.

31The second was a psychiatric report from Dr Leon Turnbull dated 10 February 2020.  Both reports disclose your continued minimisation of your offending, even denial of the substance of it.  Dr Turnbull writes, 'Mr Houghton strongly refutes any suggestion that he made contact with or penetrated the victim’s vagina'.  You told Ms Lechner that you only recall one instance of accidental touching.

32I clarified the position with your counsel at the commencement of the plea and your acceptance of the charge and the facts supporting the charge was confirmed.

33Ms Lechner observed that the offending appeared to occur at a time of considerable stress for you.  She found that you are to be considered 'low risk' of reoffending.  Ms Lechner was of the opinion that you presented with symptoms of depression and raised the prospect of you suffering a mood disorder, requiring specific mood disorder medication rather than the antidepressants you had been prescribed.

34Dr Turnbull agreed that you have had a depressive condition over the years and that you had been on antidepressant medication for a number of years.  He was disinclined to diagnose a mood disorder.  Dr Turnbull was of the view that your low mood state may make prison a bit more difficult for you compared to those who enjoy healthy mood states.  I accept that this is so and that you have some mitigation available to you as a result.

35Ms O’Brien appeared on your behalf and submitted that I must have some regard to sentencing practices in 2012 in the sense that is referred to in Stalio v The Queen.  I was also referred to Carter v The Queen and I have had particular regard to the matters set out in paragraphs 54 to 64 of that judgment.  I have also had regard to the approach to the issue discussed in Thrussell v The Queen at paragraphs 143 to 153.

36I have had regard to current sentencing practices.  I have also had some regard to sentencing practices in 2008 to 2012 only to the extent that they were materially different from the present.

37The delay between your police interview and you being charged is a matter relied upon by your counsel in mitigation.  I consider that there is to be some slight mitigation due to the matter hanging over your head in that period.  The matter has been hanging over your head also since you entered your plea in March last year.  This delay has been largely of your own making and the extension of your bail during that period has been of your choosing.

38Your counsel also relied upon your plea of guilty.  It was a late plea but nonetheless significant in that it spares your victim from cross-examination.  Emphasis was also placed upon the duration of the offending and it being absent aggravating features such as threats or use of force, in support of an argument that the offending was 'lower end'.

39I find that you have reasonable prospects of rehabilitation.  This is in spite of the minimisation and denials that come through in the psychological and psychiatric material.

40I find you have reasonable prospects of rehabilitation due to your lack of previous history, the supports and motivating factors you have in your life including Ms McLeod and your son, your solid work history and the assessment of Ms Lechner as to your risk of reoffending.

41The prosecution emphasised the following matters.  The young age of the victim, the fact that the victim’s mother was in hospital at a relevant time to the offence and that you were the victim’s primary care giver at that time.  There was a significant breach of trust and a significant traumatic effect upon your victim.

42I sentence you as follows.  Will you stand up please, Mr Houghton.

43On the charge of incest you are sentenced to be imprisoned for five years and three months.  I set a non-parole period of three years and three months.

44I declare pursuant to s.18 of the Sentencing Act that you have served 13 days pre-sentence detention.

45You have now been convicted of a Schedule 1 offence under the Sex Offenders Registration Act 2004.  There is a mandatory registration and 15 year reporting period as a result and there is some documentation that will have to perused and acknowledged by you.

46Pursuant to s.6AAA of the Sentencing Act 1991 I declare that had it not been for your plea of guilty I would have sentenced you to be imprisoned for seven years with a five year non-parole period.

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HIS HONOUR:  Are there any other matters?

MS O'BRIEN:  No, Your Honour.

MS COULSON:  Your Honour, just one other matter.  We seek an order under s.464ZF(2) - - -

HIS HONOUR:  Yes, that's right.  There was - - -

MC COULSON: - - - of the Crimes Act. Does Your Honour have a copy of that order?

HIS HONOUR:  Not right in front of me.  If you can hand one up.

MS COULSON:  I do have a copy.  It's got a date of 17 April 2019 so that will just need to be amended.

HIS HONOUR:  No, look application certainly was made and it was flagged in the opening that's Exhibit A and I did intend to make that order.

MS O'BRIEN:  It's not opposed in any way, Your Honour.

HIS HONOUR:  I'll make that order now.  Due to the seriousness of the circumstances of the offending and the order's not opposed.  The granting of the order is in the public interest.  So I make that order now.  Mr Houghton, I've made an order that you undergo a forensic procedure for a scraping of the mouth and I must advise you that if you don't consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then the sample will be taken by blood sample and the police may use reasonable force to enable that forensic procedure to be conducted.  All right.  Thank you.  All right.  Mr Houghton, that concludes my sentencing remarks.  You will remain there however because in relation to the Sex Offender Registration there's some documentation which he needs to see, Ms O'Brien.  So if I need to come back on I won't be far away

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