Director of Public Prosecutions v Hudnall (a Pseudonym)
[2022] VCC 2079
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VINCENT HUDNALL (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 November 2022 | |
DATE OF SENTENCE: | 25 November 2022 | |
CASE MAY BE CITED AS: | DPP v Hudnall (A Pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2079 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Court door plea – Incest – Course of conduct charge – Multiple acts over 7 years – Victim biological daughter – Victim aged between 7 and 13 – Bipolar affective disorder – Generalised anxiety disorder – Post-traumatic stress disorder symptoms
Legislation Cited: Sentencing Act 1991 (Vic) – Sex Offenders Registration Act 2004 (Vic)
Cases Cited:DPP v Tullipan (a pseudonym) [2021] VSCA 191; DPP v Walsh (a Pseudonym) [2018] VSCA 172; Barbaro v The Queen; Zirilli v The Queen [2012] VSCA 288; R v Verdins; R v Buckley; R v Vo [2007] VSCA 102
Sentence: Convicted and sentenced to 16 years imprisonment with a non-parole period of 12 years imprisonment – Pre sentence detention 43 days declared as having already been served – s6AAA Sentencing Act declaration – Sex Offender Registration Act for a period of 15 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Morrison | Office of Public Prosecutions |
| For the Accused | Mr R. Thyssen | Adrian Paull Criminal Lawyers |
HER HONOUR:
1Vincent Hudnall,[1] you have pleaded guilty to one rolled up charge of incest.
[1] A pseudonym.
2From the time your daughter, Aurora[2] was seven, until she commenced menstruating at the age of 13, you subjected her, often over her tears and protests to repeated acts of sexual penetration, forcing your finger into her little girl vagina. Often the abuse occurred when her mother, your wife was at work and she was home alone trusted to be home alone with you.
[2] A pseudonym.
3You penetrated her in your bed, in hers, and when she was up and dressed in the rooms where she played, did her projects and studied. At times you abused her when her mother or other adults were within earshot in the house. On one occasion you did so when an equally young friend of hers was allowed over for a sleepover. You abused your daughter as you lay between the two girls as they went to sleep.
4On the very first occasion your daughter can recall, she told you to stop, but you did not. You told her it was a secret. You told her the most appalling lies, that Daddies did this to little girls they loved and that she would be taken away if she told anyone. She was only seven and she believed you.
5Over the next seven or eight years as you continued to abuse her, you added to her sense of confusion and powerlessness. You told her after touching her that you loved her, and you asked suggestively, whether your penetrations of her vagina felt nice.
6On one occasion after an obviously painful act of penetration from behind, you took her shopping and let her choose her own new clothes.
7On the other hand you directed her to be quiet whilst abusing her in like manner when in close proximity to her mother and other adults. You told lies about what you were doing and why you were in her bedroom alone with her to other adults in her presence, making her silently complicit in your lies. You persisted in penetrating her despite her protests and tears of pain.
8You subjected her to other degrading and humiliating behaviour. You pulled her pants down, exposing her and staring at her vagina. You would have a shower when she was in the bath and stare at her in her nakedness. You made her kneel on all fours penetrating her from behind while staring at her naked buttocks.
9Any adult in a household has by their status as an adult, power over a child in the household. When that adult is a parent, that is even all the more so. And when the parent has primary care responsibilities whilst the other parent is at work, as was the case here, even more so again.
10In addition to these factors all present here, there were other more direct and frightening things you did which rendered your daughter even more powerless to resist or disclose.
11On the prosecution's summary you had a violent temper, and on occasions physically abused your daughter. The summary refers to an incident where you held her by her hair and slammed her face into a plate. Another where you hit her with a bamboo rod, hard enough to make her scream in pain and leave a bruise.
12As I have noted, the sexual abuse stopped once your daughter reached puberty. But the influence that you had asserted over your daughter did not stop then. It was not until she was in her late 20s, had become a mother herself and had watched you with her own child, that your daughter finally had the courage to disclose to those closest to her, and then to the police, what you had done to her.
13You were eventually arrested and questioned by the police. When questioned you responded in somewhat strange terms. In response to a general allegation of sexual abuse of your daughter, and then in response to specific allegations, you said that you had, 'no recollection' of engaging in the conduct alleged. You said variously, that what was being put to you was 'news' to you, that you could not imagine doing what was alleged, that you didn't remember doing it, that the conduct alleged didn't sound like you, or that the allegations didn't make much sense to you. You said as if surprised, that your daughter had never told you any of what she'd alleged and that you could not imagine her putting up with what she said you had done.
14Despite those answers, having regard to the evidence available to the police, you were charged.
15You conducted a contested committal at which not only your daughter, but also your son, your former wife, and other family and household connections were cross-examined.
16On the day your trial was listed to commence, by then, four years since you had been arrested and questioned, and 19 years since the offending ended, you pleaded guilty to a single rolled up charge of incest. And so it is you come to be sentenced today.
17
The charge covers a seven year period from 1 January 1996 to
31 December 2003. Your daughter was aged between seven and thirteen, you over that time were in your late 20s to early 30s.
18The agreed summary identifies eight specific occasions that your daughter can clearly detail, together with an unquantifiable number of instances of like misconduct over that time. And it is for that you come to be sentenced.
19The maximum penalty for incest is 25 years' imprisonment. By s5(2F) of the Sentencing Act,[3] when sentencing for course of conduct offence, the court must impose a sentence that reflects the totality of the offending that constitutes the course of conduct. The sentence for a course of conduct offence cannot exceed the maximum penalty for the offence charged, namely 25 years' imprisonment.
[3] Sentencing Act 1991 s 5(2F).
20In the recent decision of the Court of Appeal, DPP v Tullipan, the Court characterised the task of imposing a sentence for course of conduct offence as difficult and complex.[4] Importantly, in giving its reasons the Court of Appeal relied upon what it described as the common ground position of counsel for both prosecution and defence in that appeal, and both the specified and unspecified acts had to be taken into account in assessing the totality of the offending.[5] And that is why I have identified them in the way I have.
[4] DPP v Tullipan (a pseudonym) [2021] VSCA 191 [4].
[5] Ibid [36].
21The Court in Tullipan indicated that consideration of sentences imposed in other course of conduct case could provide guidance regarding the available range. It observed that cases involving sustained offending, charged as individual offences, could also be of assistance, and it also observed that sentences with single instances of incest, could be of assistance even if by way of contrast.[6]
[6] Ibid [49]-[50].
22
In Tullipan, the Court adopted the submissions made on behalf of the
Director of Public Prosecutions, that cases involving multiple acts of incest over a long period should be viewed as being considerably more serious than a single act of incest and that the difference in seriousness should be reflected in appropriate sentencing differentials.[7] Although Tullipan and a number of the cases the court referred to in its judgment, concerned pubescent or post-pubescent girls for whom the additional aggravating feature of risk of pregnancy, or risk of pregnancy materialising existed, the other features relevant to the assessment of relative seriousness are also relevant to this case.
[7] Ibid [50].
23Here, although the aggravating feature of risk of pregnancy is not present, both because of the nature of the penetration and the lack of sexual maturity of your daughter, her very, very, young age, makes this a very, very serious example of its type.
24The matters that Court referred to in Tullipan as relevant to the assessment of seriousness, were the age of the child, the duration of the offending, the number of acts, and any circumstances over and above those generally expected to flow from the direct familial relationship between the offender and child, which rendered the child more vulnerable, or the breach of trust even more egregious.
25Here, your victim was very young, pre-pubescent, aged between seven and thirteen. You are the biological father. You had been in her life fulfilling that role of father and sharing the role of primary carer since her birth. The offending spanned a considerable time, seven years. And as your daughter said, as she addressed you directly when speaking of the impact of the offending on her in the presentation of her victim impact statement,
I lost my childhood. You stole my innocence. I was so very afraid. I always felt so alone as a little girl. No room was safe in my house when I was a little girl.
26A child of that age span, seven to thirteen, is less mature and developed socially and emotionally as well as physically than a pubescent girl. Although it would appear from the agreed summary, that even at the age of seven your daughter knew that what you were doing was wrong and tried to stop you, her added immaturity and the dependency of a primary school aged child, compared to a high school teenage peer, when dealing with the only father she had known, places this case in my view, at the higher end of the scale of objective seriousness. That is so, even when the risk of pregnancy is removed from the calculus.
27As the Court pointed out in Tullipan, while worse cases can always be imagined, that does not preclude a finding that a case absent of one serious aggravating feature, (that is in Tullipan, the risk of pregnancy), that any other case which doesn't have that feature falls automatically into a lower category of gravity.
28In addition to accepting and being guided by what was said in Tullipan, I also adopt what Maxwell and McLeish JA said in DPP v Walsh.
Incest involving a child is an appalling crime. It involves a breach of trust of the most fundamental kind, and an inexplicable abdication of parental responsibility. Just as seriously it involves a cynical exploitation by the parent of the opportunity for sexual contact which being in that position of trust presents.[8]
Incest involving a child is moreover a crime of violence. As the
Sentencing Advisory Council has pointed out, sexual penetration of a child is inherently violent, whether or not it is accompanied by additional non-sexual violence. Often, as in the present case, the act of sexual penetration causes the child actual physical pain.[9]
[8] DPP v Walsh (a Pseudonym) [2018] VSCA 172 [1].
[9] Ibid [2]. See also Sentencing Advisory Council, Sentencing of Offenders: Sexual Penetration with a Child under 12 (10 June 2016) 63.
29Clearly, those observations apply equally here.
30It is clear therefore that subject to matters personal to you, a substantial term of imprisonment is warranted, to mark the abhorrence with which such conduct is rightly regarded, the weight rightly to be given to deterrence, and just punishment.
31What matters then were put in mitigation of the sentence?
32You are now 54 years old. You have no previous convictions. You come before the court as a man of good character. And as your counsel put it, as a result of this coming to light you have lost your family and lead what he described as a ‘pretty solitary existence’.
33You experienced considerable loss and trauma in your youth and no doubt, that continues to have an effect on you as the material before me indicates.
34Your father died in an industrial accident when you were eight. Your memories of family life before his death are of a troubled parental relationship. Your memories of your life after his death are very unhappy. You describe your mother as argumentative, hysterical and emotionally abusive. You describe her as not coping following your father's death. You report being exposed to violence meted out to your mother by subsequent partners, and of you yourself being sexually abused as a child by an older boy and an uncle.
35You left the family home and schooling at the age of 16. You worked for a time in a sawmill, starting but not completing a house painting apprenticeship, before coming to the mainland and joining the navy at age 18. You lasted two years in the navy. Following the traumatising death by drowning of a colleague during a submarine dive, your engagement with the navy became very problematic and you began abusing alcohol. Following an altercation with police in the course of which you were assaulted, you left the navy.
36You relocated to Melbourne, met your wife and by the age of 21, your daughter, the victim here was born. Your second child, a boy, followed some years later.
37Until the age of 35, so that is spanning the whole period of the offending and beyond, you worked variously as a house painter and tram driver. You have not been in paid work since the age of 35. I am told you have been in receipt of a Disability Support Pension since then. It would appear from the brief information about that in the materials relied upon on the plea, that your eligibility was based on physical ill health. Ms Cidoni, the psychologist who assessed you for the purposes of the plea, makes reference to your report of a longstanding degenerative disc disease first manifesting when you were only a teenager.
38You had struggled with what was apparently undiagnosed mental health problems for many years and by the age of 40 you first were diagnosed as living with bipolar disorder. As best as can be ascertained from the materials before me, it would appear to be, and I accept that as a diagnosis of what was a pre-existing but previously undiagnosed issue, not a disorder that first manifested itself at age 40. It would appear from the materials before me that since diagnosis you have responded well to medication to manage your mood swings and that condition.
39Ms Cidoni expresses the opinion that you also satisfy the diagnostic criteria for generalised anxiety disorder and that you exhibit traits consistent with post-traumatic stress disorder symptoms. Despite whatever physical ill health led to you being eligible to receive a disability support pension and these mental health or psychological disorder issues, you have demonstrated a capacity to learn and to sustain engagement in meaningful activities after the age of 40.
40You completed a five year theology degree and a certificate in pastoral care. You have been actively involved it would appear in church and you have worked for considerable periods as a volunteer. You worked for nine months as a volunteer at Peter McCallum Cancer Centre, for an unspecified period as a community visitor in dementia wards under the auspices of the Office of Public Advocate, and until you were charged you had either been volunteering or were on the active list of volunteers to be considered for St John's Hospital in Geelong.
41You remained with your wife until separation in 2015. I was told that for the last seven years, following that separation you moved to Ocean Grove and you have been in some form of relationship with a woman since then. I have been given different and conflicting accounts of the nature of that relationship. It is unclear on the material whether she is a domestic partner, as was referred to in some of the material, or, as was put to me specifically on the plea, a friend with whom you share a house and expenses. Whatever the nature of the relationship is or was, she did not attend court or provide any testimonial on your behalf and no evidence was placed before me of any expectation of the continuation of that relationship.
42The psychological report that was provided by Ms Cidoni is of limited assistance. It is based on self-report only. The attempt to obtain the records from your recently retired treating doctor for the last seven years, did not come to any fruition before the plea and so the family history and the mental health and physical health history all provided to Ms Cidoni were based on self-report only.
43Significantly, as Ms Cidoni noted, you were what she described as ‘reticent’ in discussing the circumstances of the offending, shifting focus to reactions, that is the significance for you of the alienation from family following disclosure by your daughter of the offending. The only risk assessment therefore that Ms Cidoni conducted, was using the SVR or Sexual Violence Risk 20 tool, which is largely reliant on objective criteria or unverified self report.
44Ms Cidoni noted that you denied continual paedophilic urges and did not express attitudes which condoned sexual offending. I can make no assessment of how truthful or reliable those responses were, given your responses to police when interviewed, which I have detailed, what Ms Cidoni described as your reticence in discussing the offending, and your deflection of discussion about the offending to the consequences for you from disclosure.
45Ms Cidoni said that your insight was fair and that you accepted your behaviours were wrong. She said you expressed remorse and regret. Nothing was said or put on the plea to provide any evidence of how that was expressed or manifested. Even after the very powerful victim impact statement, part of it addressed directly to you, that was delivered by your daughter on the day of the plea, no expression of remorse or regret was advanced by your counsel on your behalf. Clearly that was on instructions.
46Consistently with what the Court of Appeal has said in Barbaro and Zirilli,[10] I give the bland expression in the psychological report of remorse and regret little weight when assessing its significance for your risk of reoffending and your prospects for rehabilitation. I want to make it clear you are not to be punished for that, it simply means that it is the absence of a feature which if present can be a mitigator or carry weight.
[10] Barbaro v The Queen; Zirilli v The Queen [2012] VSCA 288
47Ms Cidoni concluded that you satisfied the DSM-V criteria for paedophilia. That conclusion is based, it would appear on the nature of the offending as revealed in the prosecution's summary, given that you did not give any account to Ms Cidoni of the offending. As I have noted Ms Cidoni also concluded that you met the criteria for bipolar affective disorder and generalised anxiety disorder.
48She also noted that you reported cluster B personality traits, characterised by anxious, fearful thinking or behaviour, avoidant, dependent and obsessive compulsive traits and post-traumatic stress disorder symptoms. She also considered that you met the criteria for alcohol abuse disorder in sustained remission, that is, in the 14 years since you were diagnosed and successfully medicated for bipolar disorder.
49Despite your denial of continued paedophilic urges, Ms Cidoni assessed your risk of sexual re-offending without intervention as medium. I note that nothing was said in Ms Cidoni's report and nothing was put on the plea on your behalf about your preparedness to engage in any sex offender treatment.
50I therefore conclude that your prospects for rehabilitation are best described as guarded. I have noted you come before the court as a man without criminal history and there is no offending in the 19 years since this offending concluded. You are entitled to have that otherwise good character taken into account. Of course it is also noted that good character carries less weight in cases of sexual offending particularly against children, as it is often that that good character, as well as the position of trust in the family, that enables the offending to occur and to remain concealed for so long.
51You are entitled to a reduction in the sentence otherwise appropriate by reason of your guilty plea. The plea was a late one, at the court door on the first day of trial. Your daughter was cross-examined at committal and had had to prepare herself for the further ordeal of cross-examination and the indignity of further challenge to her truthfulness and reliability at trial.
52So, while the plea of guilty does carry a reduction for its utilitarian benefit and sparing your daughter the ordeal of giving evidence, the weight usually given to such factors is tempered by the late stage at which the plea was entered. And given what I have already said about the absence of evidence to support the bland assertion in Ms Cidoni's report, that you expressed remorse, I do not consider that the guilty plea is of itself further evidence of remorse.
53I accept that although COVID restrictions in prison are less than those that existed at earlier stages of the pandemic, the sentence is also to be reduced to reflect the additional hardship in custody likely to occur from the continued risk of exposure and the restrictions of freedom of movement and visits as a result of COVID restrictions.
54I also accept that your plea of guilty, although late, does have an effect on reducing the COVID related backlog in the courts and that too, is something to be taken into account in reducing the sentence otherwise appropriate and the weight to be given, and increasing the weight to be given to the guilty plea.
55I also accept given the diagnoses of bipolar affective disorder and generalised anxiety disorder, that limbs 5 and 6 of Verdins[11] are enlivened. Also, because of the existence of the post-traumatic stress disorder symptoms. Although your bipolar disorder is apparently well controlled by medication, I accept that imprisonment could be more onerous for you than for somebody not living with it, generalised anxiety disorder, and post-traumatic stress disorder symptoms, and reduce the sentence accordingly.
[11] R v Verdins; R v Buckley; R v Vo [2007] VSCA 102.
56As was discussed in the course of the plea and ultimately conceded by your counsel, I do not consider that any other limb of Verdins is enlivened. In particular, the first limb of Verdins is not enlivened. No causal connection between the bipolar affective disorder, the generalised anxiety disorder or post-traumatic stress disorder symptoms and the offending are established.
57In her report at [91], Ms Cidoni said,
These states/ conditions would have led to disinhibited behaviours and contributed to the acting out of paraphilic desires. During a manic episode, impulsive, reckless, sexual behaviours and significantly increased sexual drive are commonly observed and hypersexual behaviour is often a sign of a manic episode.
58There is no evidence though to suggest that the sexual assaults on your daughter occurred during manic episodes, or only during manic episodes and what is of note is that at best, Ms Cidoni says,
They can lead to disinhibited behaviour and contribute to the acting out of pre-existing or quite separate paraphilic desires.
59I find therefore there is no evidence to establish the application of the first limb of Verdins. Although the matters identified by Ms Cidoni are relevant contextually, they do not enliven the first limb.
60It was conceded by your counsel following what was said by the Court of Appeal both in Dalgliesh[12] and Tullipan that a substantial term of imprisonment was warranted. I accept those submissions.
[12] DPP v Dalgliesh (a Pseudonym) [2017] VSCA 360.
61You are now 54 years old. Imprisonment for a substantial period for the first time and for a first offender I accept will be onerous. It was also put, that a lengthy period of parole would provide some hope for the future. That of course, is a matter for the Parole Board and for you.
62As was acknowledged by your counsel in the course of the plea, parole prospects are significantly influenced for sex offenders because that is what you are, especially child sex offenders, and that is what you are, by a preparedness to participate in and successful completion of a sex offender treatment program.
63I urge the custodial authorities responsible for your care whilst you are in custody to ensure that all opportunities to be assessed for, and to participate in sex offender treatment programs, are made available to you. Whether you choose to participate in them is of course a matter for you, but I accept that your prospects of rehabilitation, and your prospects for release on parole are likely to be significantly improved, if you acknowledge the wrongdoing and successfully participate in a program.
64
As this charge, this rolled up charge of incest is, what is described under the
Sex Offender Registration Act,[13] as single class 1 offence, you are subject to the reporting conditions of the Sex Offender Registration Act for a period of 15 years. Given this is a remote hearing as I indicated before, I will ensure that those reporting conditions are provided to your counsel and solicitors and provided to you in the prison, so that you are notified of those conditions.
[13] Sex Offenders Registration Act 2004 (Vic).
65However it is not necessary for me to physically have those papers with the conditions on them in your hand for the order that you are now on the register and bound by its reporting conditions for a period of 15 years to be effective.
66Therefore, I am fixing upon the sentence, governed as I must be by s5(2F)(a). I have weighed all these matters as best I can, and considered not only the principles outlined in Tullipan, Dalgleish and Walsh, but also the comparable or like sentences collected by the Court of Appeal in Tullipan and to which they referred.
67I now come to formally sentence you.
68Vincent Hudnall, on the one course of conduct charge of incest, to which you have pleaded guilty, you are convicted. You are sentenced to be imprisoned for a period of 16 years and I fix the period of 12 years as the time that you must serve before being eligible for parole.
69I declare that you have spent 43 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence you have already served.
70I declare that pursuant to s6AAA of the Sentencing Act, that but for your plea of guilty, I would have sentenced you to a term of imprisonment of 19 years with a non-parole period of 15 years and six months, and I formally declare that you are now subject to the reporting conditions under the Sex Offender Registration Act for a period of 15 years.
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