Director of Public Prosecutions v Hubbard (a pseudonym)

[2019] VCC 2102

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

V

JAMES HUBBARD (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	3 December 2019
DATE OF SENTENCE:	12 December 2019
CASE MAY BE CITED AS:	DPP v Hubbard (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 2102

REASONS FOR SENTENCE
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Subject:         Sexual assault of a child under 15, Sexual penetration of a child under 16 years.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Sprague	OPP
For the Accused	Mr L. Barker	VALS

HER HONOUR:

1James Hubbard[1], you have pleaded guilty to the following offences, one charge of sexual assault of a child under 15, and two charges of sexual penetration of a child under 16.  The maximum penalty for these offences is 10 years and 15 years respectively.

[1] James Hubbard is a pseudonym

2The full circumstances of your offending are set out in the prosecution opening, dated 2 December 2019 (Exhibit A).

Background

3By way of background, you were living with your de facto partner, Jennifer Sutton[2], and your two children, aged three and 15 months, in Preston.  The complainant, Janine Sutton[3], was 15 years old and is Jennifer Sutton's cousin, who lived with her family in Mooroopna.

[2] Jennifer Sutton is a pseudonym

[3] Janine Sutton is a pseudonym

4On Sunday 26 November 2017, the complainant visited and stayed at your house, as she was thinking of moving to Melbourne.  You had met her on a couple of occasions before.

5On 27 November 2017, you went to work, then you visited your aunt, arriving home at about 10 pm.  The complainant was smoking outside, and she told you she was 15.  You told her she was too young to smoke in a joking manner. 

6Later she went to sleep on the couch in the lounge.  You got up at around midnight and went to her in the lounge room.  You reached down over the back of the couch and touched and squeezed her bottom over her clothes.  You then reached down between her legs and rubbed and squeezed her vagina over her clothes.  That is the conduct constituting Charge 1.

7She was awake but pretended to be asleep.  You left the lounge to attend to one of your children but came back soon afterwards.  You reached in between her legs and touched her clitoris, then penetrated her vagina with your finger, moving it in and out for about 30 seconds.  That is Charge 2, sexual penetration of a child under 16.  She continued to pretend to be asleep and you went back to bed.

8The next morning at about 9 am, your partner took one of the children to day care.  When she was gone you went to the lounge where the complainant was still lying on the couch.  You were wearing a shirt, but no pants.  You had your penis near her face.  You pulled her pants down and pulled them off one of her legs.  You touched her breasts and clitoris with your fingers.  You then had penile vagina sex with her, ejaculating inside her.  That is the conduct constituting Charge 3.

9She put her hands up over her eyes and face and challenged you, swearing at you.  You told her to put on her clothes as Jennifer would be home soon.  She was crying.  You did not use a condom. 

10Later in the morning, she told her family members what had happened, and they told Jennifer Sutton, who confronted you.  You admitted that you had touched her, and police were contacted. 

11On 7 December 2017, you were arrested and interviewed.  During the interview, you made full admissions in respect of the sexual conduct, stating that it had happened on two occasions, and that you had been drinking. 

12You said you had no idea she was 15, you thought she was 18 or older because of her size, and you thought she was consenting because she moved when you initially touched her, and because she did not call out to Jennifer.  You denied that she was asleep or appeared to be asleep.

13I was informed by your counsel, at the time of the offending, you were intoxicated.  You had been visiting an aunt in Fitzroy earlier in the night and had consumed a 4 litre cask of port.  Alcohol consumption does not excuse your behaviour but may provide an explanation for it.  Reference is made to your alcohol abuse history later in these reasons

Victim Impact Statement

14I received a victim impact statement from Robert Sutton[4], the complainant's father, in which he describes the changes in his daughter's personality, her loss of interest in socialising and the significant effect on her because of your offending.

[4] Robert Sutton is a pseudonym

Personal circumstances

15As to your personal circumstances, I received reports from Dr Nina Zimmerman, forensic psychiatrist, dated 25 July 2019, and from Associate Professor Warrick Brewer, consultant clinical neuropsychologist, dated 16 October 2019, and I take that material into account. 

16You are an aboriginal man from a remote community, Yuelamu, in the Northern Territory, with a small population of approximately 250.  You are currently 25, and you were 23 at the time of the offending.  You are the younger child of your parents, who remain living in Yuelamu, with your 27-year-old brother. 

17You had a difficult childhood, being exposed to alcohol and violence, which were endemic in your community.  Your mother had serious alcohol issues to the extent that Associate Professor Brewer raised the possibility of you suffering from Foetal Alcohol Syndrome when you were born. 

18Your father was repeatedly violent towards you, even as an infant.  You still bear the scars of some of the injuries he inflicted on you.  Your uncle broke your jaw in a drunken rage when you were aged only six.  Your father was also violent towards your mother and, as you got older, it was you who took her to hospital and you who also sought refuge with her on a number of occasions. 

19You completed primary school at the Mt Allan Community School, and then sent to boarding school in Darwin.  You then to Melbourne with your brother to Worawa Aboriginal College in Healesville.  By the time you attended Worawa, you had developed your own substance abuse problems.  Unsurprisingly, your education suffered, and your substance abuse led to behavioural problems and limited academic progress. 

20You commenced drinking at 15, this was so despite Yuelamu being notionally a 'dry' community.  When you were sent to Melbourne, your alcohol issues worsened significantly with daily consumption of cask wine.  You also smoked up to a quarter of a gram a day of cannabis from the age of 15, until you were about 23 when you quit.  Additionally, you have smoked methylamphetamine, or ice, briefly used heroin, and engaged in sniffing petrol. 

21You were initiated at 15.  Dr Zimmerman noted:

'This now guides the nature of interactions between you and family members… there are certain matters that you cannot discuss with your mother.  Shame is also a big factor that prevents you reaching out for support from your community, although there is one uncle in the community that you can talk to.' 

22You have maintained consistent employment working in Melbourne and outback communities.  You have had employment as a storekeeper in Yuelamu, a removalist, tyre fitter and in a souvlaki shop in Melbourne.  You worked for three years as a stockman in the Katherine Stockyards, and obtained that work through the Cattlemen's Association connection with your community.

23You commenced a relationship with Jennifer Sutton when you were 15 and she was 14.  You have two children, Bobby[5], born in January 2015, and Mila[6], born in January 2017. 

[5] Bobby is a pseudonym

[6] Mila is a pseudonym

24Your relationship broke down when you were charged with these matters.  She has relocated to Perth and you have no contact with the children. 
Dr Zimmerman recognized that you are 'shattered' by the loss of your partner, and that you are particularly struggling with not seeing your children.

25Dr Zimmerman concluded that you were suffering from an episode of major depression at the time of the offending.  Further, she opined that you are at risk of your mental health worsening in prison, and that you were a high risk of becoming severely depressed.  I accept that prison is likely to be more burdensome for you and that your mental health may deteriorate.

26Dr Zimmerman noted the history provided by you reveals a number of factors that may be associated with an acquired brain injury (ABI), including exposure to alcohol in utero, a measles infection as an infant, repeated periods of unconsciousness due to trauma, assaults as a child and regular substance abuse since your mid-teens, all when vital brain development is occurring.  An ABI may be associated with cognitive and emotional difficulties, depending on the area of the brain that is affected.

27Given your long history of substance abuse, particularly alcohol, Dr Zimmerman opined that you meet the criteria for cannabis and alcohol dependence, though both are currently in remission in the context of your incarceration.

28Associate Professor Brewer administered a series of psychometric tests and assessed your Full Scale IQ at 67 to 75, that is in the second percentile of your peers.  It is at the nexus of 'borderline' and 'mildly impaired'.  He concluded:

'The overall evidence on balance suggests that the greater weighting of your  vulnerability has been long-standing from early childhood ….  That the distracting emotional impact of traumatic experiences arising from your disrupted and chaotic/violent attachments, should not be underestimated ….  Furthermore, that your history and clinical symptom assessment suggests that you are currently impacted by features of post-traumatic stress and associated risk for further decompensation into psychosis.'

Prior Criminal History

29You have a significant criminal history that extends over the last seven years from 2012, much of which is alcohol related.  The most serious offending relates to an aggravated robbery recorded at the Alice Springs Supreme Court on
26 July 2012.  On that occasion, you entered a bottle shop and took a bottle of alcohol whilst armed with a knife.

30I accept that the offending behaviour in this case is not consistent with your usual or previous criminal behaviour. While you have numerous prior court appearances, none of that offending was of a sexual nature.

Plea of guilt/remorse

31You have pleaded guilty to these matters at the first opportunity.  I accept that your guilty plea has significantly facilitated the course of justice and has a utilitarian benefit, saving the cost to the court and community of any legal proceedings.  The complainant was not been required to give evidence or provide details and relive the traumatic incident, thus your plea is of significant value. 

32I accept that your plea is also indicative of remorse.  Consistent with your remorse, you made admissions when interviewed by police.  Further, it is apparent from Dr Zimmerman's report that you have repeatedly expressed your remorse, and also you provided a letter to that effect to the court. 

33Your counsel submitted that you had true remorse and shame for your actions, and that you have expressed a level of empathy for the complainant.  I accept that submission.

Rehabilitation

34You have used your time constructively whilst on remand.  You have undertaken adult education courses in maths, English and art.  You are a talented artist, as attested to by the letter of Ms Androutsopoulos from Jesuit Social Services Artful Dodgers program, dated 21 March 2019.

35Since incarcerated, you have been required to provide a urine sample on one occasion, which was negative for both drugs and alcohol.  Clearly, your rehabilitation prospects are dependent on you remaining off all illicit substances and alcohol.  I note that you have never engaged in any rehabilitation counselling to address either of those issues.  You have been prescribed antidepressant medication whilst in custody. 

36Tests were administered by Dr Zimmerman regarding your risk of re-offending.  She concluded that you presented with a low to moderate risk of future sexual offending.  She noted items of concern related to factors that are equally important for a risk of general offending, namely, a history of childhood abuse, current/recent substance misuse, current mental disorder, evidence of a lack of pro-social connections and problems with manageability.  She noted that there was no evidence that you posed an imminent risk of sexual violence, nor any suggestion that any future sexual violence would involve serious or life-threatening physical harm to others.

37Dr Zimmerman noted that you had been able to identify a link between past offending and intoxication.  It was submitted that such insight was very important if you were to rehabilitate yourself.  The prosecution submitted that your rehabilitation prospects were guarded and particularly dependent on you addressing your alcohol issues. 

38I accept that you do have insight into the connection between your offending and alcohol abuse; such augers well for your rehabilitation.  However, the success or prospects for rehabilitation are clearly dependent on you tackling and overcoming your long-term alcohol and substance issues; a difficult task.

Youth

39You are still of relatively young age, though not a young offender as that term is defined under the Sentencing Act.  Given your age, and that your level of functioning is low as described by the professionals, I take into account the relevant sentencing principles applicable to young offenders as set out in your counsel's written submissions, though attribute less weight to them, given your age. 

Cultural background

40In addition to the matters set out above, I take into account your cultural background and childhood experiences.  Your counsel referred to the permissible basis for taking your aboriginal background into account in sentencing you, and I accept the factors that are applicable to your circumstances as outlined in your counsel's submissions.  Most particularly, in relation to you and your circumstances, I note from R v Fuller-Cust [2002] VSCA 168:

“While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects; and

That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of an offender and the avoidance of recidivism on his part.”

41Further, your counsel submitted I should accept and give full weight to your difficult childhood (see Bugmy v The Queen [2013] HCA 37). From very early years, and possibly pre-natal, you were exposed to alcohol abuse and, in your young formative years, domestic violence, physical abuse, alcohol and drug use, lack of education and a dysfunctional family life. The effect of such depravation does not diminish over time. This history, along with your limited intellectual ability, has contributed to the choices that you have made with alcohol and drug use, and the commission of this very serious offending.

42As a consequence I have moderated the application of both specific and general deterrence and recognise a limited reduction in your moral culpability for this offending. 

Aggravating features

43As to aggravating features, you were in a position of trust with the complainant; she was staying at your house and there was a significant age difference between you and her;

44Your offending though it occurred over a limited time period, was two distinct incidents;

45You did not use condom;

46The impact on the complainant and her family members has been significant;

47You are to be sentenced as a serious sexual offender in respect of Charge 3.

Sentencing considerations

48Your counsel conceded that the only option available to me was the imposition of a term of imprisonment with a non-parole period.  You have already spent about 14 months in custody.  Additionally, you spent 53 days in custody for an unrelated matter which the parties agreed should be taken into account as Renzella time, which I accept.

49This was very serious offending.  Your partner's young cousin placed herself in the safety of your home, and you took advantage of her vulnerability when she was sleeping on the couch.  You persisted with the conduct in the morning when your partner was out.  Children need to be protected from these kind of sexual assaults, and the community demands denunciation of such conduct.  Other sentencing considerations of general and specific deterrence, moderated as indicated above, and just punishment are central in the sentencing synthesis.  These must be balanced against the powerful matters put in mitigation, including your deprived background and plea of guilty. 

50Taking all relevant matters into account, I propose to sentence you as follows.  In respect of Charge 1, you are convicted and sentenced to a term of imprisonment of nine months.  In respect of Charge 2, you are convicted and sentenced to a term of imprisonment of four years.  In respect of Charge 3, you are convicted and sentenced to a term of imprisonment of six years. 

51On year of the sentence imposed on Charge 2 will be cumulative on the base sentence, that for Charge 3, giving a total effective sentence of seven years.  I set a non-parole period of three years and nine months.  It should be noted on the court records that you are sentenced as a serious sexual offender in respect of Charge 3.

52Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this matter, I would have imposed a sentence of nine years, with a non-parole period of six and a half years. 

53Pursuant to the provisions of the Sex Offenders Registration Act, given your conviction in relation to this matter, there is a mandatory registration, and you will be on the register for a period of 15 years.  PSD, please?

54MR SPRAGUE:  Four hundred and 20 days.

55HER HONOUR:  Thank you.  I declare pre-sentence detention of 420 days.  And did I make the forensic sample order?

56MR SPRAGUE:  It is not sought, Your Honour.  Police can authorise that now.

57HER HONOUR:  Yes, I will.  Do you have a copy of that, or have I got that?

58MR SPRAGUE:  The order is no longer sought, Your Honour.

59HER HONOUR:  All right.

60MR SPRAGUE:  Due to legislative change, the police can authorise that.

61HER HONOUR:  Right.  All right, sorry.  Thank you.  That is all right.  Yes, thank you.  Mr Barker, you might like to explain to your client ‑ ‑ ‑

62MR BARKER:  Indeed, Your Honour.

63HER HONOUR:  ‑ ‑ ‑ with my associate, the Sex Offender Registration order, thanks. 

64ASSOCIATE:  That is done, Your Honour.

65HER HONOUR:  Thank you. 

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