Director of Public Prosecutions v Hudson
[2023] ACTSC 333
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Hudson |
Citation: | [2023] ACTSC 333 |
Hearing Dates: | 3 & 16 November 2023 |
Decision Date: | 17 November 2023 |
Before: | Berman AJ |
Decision: | Sentenced to imprisonment for 4 years and 9 months with a non-parole period of 2 years and 6 months. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – act of indecency – attempted sexual intercourse without consent – choke/suffocate/strangle – property damage – common assault – victim was a sex worker in a brothel – objective seriousness – Bugmy principles – risk of reoffending – hardship on offender’s family – no prior sexual offending – sentences of imprisonment |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 10 |
Cases Cited: | DPP v Moala [2023] ACTSC 306 |
Parties: | Director of Public Prosecutions Darrell Hudson ( Offender) |
Representation: | Counsel A Williamson SC w/ D Ager ( DPP) K Musgrove ( Offender) |
| Solicitors ACT Director of Public Prosecutions Hugo Law ( Offender) | |
File Numbers: | SCC 172, 173 of 2022 |
BERMAN AJ:
Introduction
1․On 17 April 2023 the offender Darrell Michael Hudson was arraigned before a jury on an indictment containing 14 counts. He pleaded not guilty to each of those counts but after a relatively short trial was found guilty on a number of them. He is now to be sentenced for the offences on which he was found guilty by the jury as well as a transfer charge of common assault.
2․In the early hours of 26 February 2021, the offender and one of his friends went to a brothel. There they met a sex worker who I will give the pseudonym Vanessa Thompson. An agreement was reached that the offender would engage Ms Thomson’s services, the money for that being paid by the offender’s friend. What was paid for was a “standard service”.
3․Although the offender denied this at his trial, I am satisfied beyond reasonable doubt that before any sexual activity occurred the offender was made aware as to what sexual acts he was entitled to perform or have performed on him as part of the standard service for which his friend had paid. I am satisfied beyond reasonable doubt also that it was explained to him that Ms Thomson could terminate the service at any time.
4․I reject as being not reasonably possible the offender’s evidence at trial that he was never told what was included in the standard service. There was evidence, from a number of sources, that all clients were told this. It is important for both the safety of the workers, and the making of money by the brothel, that clients understand what is part of the standard service and what they will have to pay extra for.
5․Before I described the actual acts on which the offender was found guilty, I should make this introductory remark. Everyone is entitled to decide for themselves whether they will consent or not to particular sexual acts and people are entitled to give consent on conditions. Thus, to use an old-fashioned example if someone says to his or her fiancé “I will let you have sex with me once we are married”, that is not to be taken as consent to having sex before they are married.
6․And closer to the circumstances of this case, a person is entitled to say, “I will only consent to that particular sexual act if you pay money for it”. If the person says that, then that is not to be taken as consenting to the sexual act if no money is paid.
7․Further, sexual assaults upon sex workers are not less serious because the nature of their job requires them to perform sexual acts. Indeed, it is appropriate to recognise that sex workers are in a particularly vulnerable position: see The Queen v Miller [2019] ACTCA 25 at [34].
The facts
8․Returning to the facts in this matter, once the offender and Ms Thompson went to a suite in the brothel, she checked his genitals for signs of disease and then asked him to have a shower which he did. After the offender had finished showering, sexual activity began, with Ms Thomson consenting to what took place.
9․However, at one stage while Ms Thompson was lying on her stomach, the offender told her he wanted to lick her buttocks. The offender said things which suggested that he needed to lick her buttocks in order to be aroused. Ms Thompson did not consent to this and told the offender that she did not want him to do it. The offender then licked and bit her buttocks anyway. While he was doing that, the offender asked, “well doesn’t that feel good” and the complainant said “no, not really.”
10․That represents an offence of performing an act of indecency without consent, an offence under s 60(1) of the Crimes Act 1900 (ACT) which carries a maximum penalty of 7 years imprisonment.
11․A little while later, the offender repeated this conduct, licking Ms Thomson’s buttocks without her consent once again. After that he caressed her buttocks and genitals with his hands.
12․Those acts are two more offences of performing an act of indecency without consent.
13․More serious offences followed. Ms Thomson rolled over onto her back and the offender sat on her chest straddling her with his knees either side of her. Her arms were tucked under his legs so that she could not move them. She asked him “what are you doing” and he replied, “I want to face fuck you”.
14․That represents an offence of sexual assault in the third degree under s 53(1) of the Crimes Act1900 (ACT) for which the maximum penalty is imprisonment for 12 years. The offender inflicted force upon Ms Thomson without her consent and with the intention of putting his penis into her mouth.
15․Following that offence, the offender did what he said he was going to do, he put his penis in her mouth. Ms Thomson was unable to move and therefore she was forced to acquiesce in what the offender was doing.
16․What I have just described is an act of sexual intercourse without consent, an offence under s 54(1) of the Crimes Act 1900 (ACT) for which the maximum penalty is 12 years imprisonment.
17․At one stage Ms Thomson was sitting up. The offender grabbed her face quite hard, made her look into his eyes and pushed down on the bed. He then called her a “bitch” and spat in her face before slapping her across the face with his right hand using an open palm.
18․He then held Ms Thomson down by holding her neck with his right hand, applying pressure to her windpipe. She had difficulty breathing, her vision went blurry, and she temporarily lost her sense of hearing. That is an offence of choke/suffocate/strangle, under s 28(2) of the Crimes Act 1900 (ACT) with a maximum penalty of 5 years imprisonment.
19․Ms Thompson was able to turn her head and found a condom under the pillow on the bed. She grabbed it and put it in her mouth intending to put it on the offender’s penis. This was not because she consented to the accused putting his penis in her mouth, but because she knew he was going to do that anyway and wanted to protect herself.
20․The act of the offender putting his penis in Ms Thomson’s mouth is another offence of having sexual intercourse without consent.
21․After that, the accused tried to penetrate Ms Thompson’s genitals with his penis while not wearing a condom. He was not able to do so because his penis was not sufficiently erect.
22․That is an offence of attempting to have sexual intercourse with Ms Thomson without her consent, the maximum penalty of that offence is also 12 years imprisonment.
23․After having failed to penetrate her genitals with his penis, the offender used a number of his fingers to penetrate her vagina roughly while holding her down. She could feel his nails scratching her and when later examined by a doctor, a small laceration was found.
24․That is another offence of having sexual intercourse with Ms Thomson without her consent.
25․Clearly frustrated at what had happened and his inability to get an erection the offender made a punching motion towards her face. He did not make contact, but his actions amounted to an offence of common assault, a transfer charge for which I will sentence him. This is an offence under s 26 of the Crimes Act 1900 (ACT) with a maximum penalty of 2 years imprisonment.
26․I consider that it is in the interests of justice to deal with this matter which has been transferred from the Magistrates Court. Ms Thomson gave evidence in the trial that the offender did what I have just described. Such behaviour is consistent with the offences for which the offender was found guilty by the jury. I found Ms Thomson to be a credible witness and I was satisfied beyond reasonable doubt that when she described the events giving rise to the transfer charge, she was telling the truth.
27․Finally, the offender punched the plasterboard wall of the suite twice, making a hole in it. Although the offender pleaded not guilty to that offence at the beginning of the trial, in his evidence he admitted that he had done what I have just described and so the jury’s verdict of guilty on that offence came as no surprise to anyone. This is an offence under s 403 of the Criminal Code 2002 (ACT) with a maximum penalty for that offence of 10 years imprisonment or 1000 penalty units or both.
Subjective circumstances
28․The offender is now 32 years of age. He had a far less than ideal upbringing. Mr Hudson’s parents divorced after one of his mother’s children born from an earlier relationship committed suicide. This was when his mother was visiting him in Tasmania. She never returned to Canberra so from the ages of 13 to 15 the offender was brought up by his father. That arrangement ended due to conflicts with his father’s new girlfriend and he went to Tasmania to live with his mother. By this time, she was an alcoholic, so after six months he returned to his father.
29․He was exposed to domestic violence, and cruel treatment from his mother including comments such as “if I had a gun, I’d shoot all you kids” and on another occasion she strangled and hit him before verbally abusing him.
30․He recalled being disruptive at school and was bullied both at school and by his older sister. He left school after in year 10. His attendance at school was poor and he did not understand his schoolwork. He told a psychologist who prepared a report for the purposes of these proceedings that he was hanging out with bad kids and was suspended many times.
31․He has lost jobs for various reasons, after police attended his workplace in relation to something he did, because he did not have a licence, and poor attendance.
32․He is currently in relationship with a woman who has a child from a previous relationship and a child with the offender. She has written a letter to me in support of the offender in which she speaks highly of him and their relationship and says that “being with his family is the most important thing to him, and even the thought of not being with us is devastating for him”.
33․The references on which the offender relied demonstrate that he provides for and cares for his family to whom he is dedicated. He also has a strong work ethic.
34․Although he has used drugs in the past, this has now ceased apart from cannabis which is prescribed for him by his doctor. He told the psychologist that he was not drinking much, although he was intoxicated on the night of the offences and had had a can of alcohol in the morning before he saw the psychologist.
35․He described to the psychologist periods which typically last 10 days when he cannot get out of bed thinking about how hard life is. He has attempted suicide more than five times. In adolescence he would cut himself and punch a brick wall.
36․The psychologist administered a number of tests which revealed a high-risk level of alcohol use, a high-risk level of drug use and he scored 47 on a test for Post Traumatic Stress Disorder where a cut-off of 33 suggest that he likely meets the criteria for a diagnosis of that condition.
37․It would have been better if the psychologist had addressed the diagnostic criteria for PTSD (which are annexed to her report at Appendix 2) in her report, but I am nevertheless satisfied on the balance of probabilities that the offender suffers from PTSD.
38․The prosecutor asked me to conclude that the offender was at least exaggerating his problems with mental health, pointing out that he had never been diagnosed with anything relevant until after the jury’s verdict and that the offender did not give evidence during the sentence proceedings. However, in the absence of the psychologist being required for cross examination, or any objection to the tender of the report, I will accept what the psychologist says about the offender.
39․Because the offender continues to deny his guilt, the psychologist clearly had difficulty in answering questions from the offender’s lawyers regarding whether the offender’s psychological state affected his moral culpability. She did however say that his use of drugs and alcohol may have impacted his ability to make sound choices and that his ability to exercise appropriate judgment may have been impaired.
40․The report suggests that there are positive factors for his rehabilitation although the Static 99 test indicates that he is well above average risk of sexual reoffending. Further “it is generally accepted that rehabilitation begins with acceptance of responsibility for the offending conduct”: see DPP v Moala [2023] ACTSC 306 at [67].
41․When considering the relevance of the offender’s psychological state, it must be remembered that many offenders facing sentence for serious crimes would be affected by the prospect that they will be receiving a custodial sentence. His partner’s letter speaks of the change in the offender since “this has happened” by which I presume she means since he was convicted, and another reference writer says that from the day the offender was found guilty he “has not been the same person he used to be”.
42․However, that is probably not enough to explain the offender suffering at present from a Major Depressive Disorder, especially as the offender reported a history, confirmed by his mother, of being on occasions unable to leave his bed and ruminating how hard his life is.
43․Other references provided to me all suggest that the offences for which the offender is to be sentenced are out of character for him. There are no sexual assault matters on his criminal history which contains driving offences, common assault, and destroy or damage property offences, one committed after the offences for which I will soon sentence him.
44․The submissions relied on by the offender asked me to take in to account the offender’s background in accordance with Bugmy v The Queen [2013] 249 CLR 571. I will certainly do that. In particular he was exposed to violence and alcohol abuse from a very early age.
45․To him as he grew up, becoming angry and violent was normal. The effects of an upbringing such as that do not simply disappear in adult hood. The way in which the offender was raised make it much more likely that he would have engaged in the criminal behaviour for which I must sentence him than a person who did not have his disadvantages when growing up.
Objective seriousness
46․It is important that I articulate the factors that inform my assessment of the objective seriousness of each offence: see Laipato v The Queen [2020] ACTCA 35 at [156]. The prosecution made detailed submissions on this matter for each offence, but the written submissions relied on by the offender say that “in the absence of findings of facts to be made by the Court it is not possible to effectively submit on objective seriousness”. The findings of fact I have made are unsurprising, based on the evidence of the complainant at trial where it is consistent with the verdicts of the jury. The result is that there was no submission to the contrary of the prosecution’s arguments concerning objective gravity. That does not mean that I must accept everything in the prosecution’s submissions of course.
47․As I have already mentioned, but it is worth repeating, all these offences were committed against a person whose work as a sex worker made her vulnerable to offences of this kind.
48․All offences occurred as part of a degrading series of assaults which took place over about 15 minutes, during which the offender used violence to do whatever he wanted to do despite the complainant’s continual attempts to persuade him to stop. The offender acted as though he was entitled to commit the offences I have described because the complainant was a sex worker by whom he was, as he told her, “disgusted”.
49․The three offences of sexual intercourse without consent relate to two forms of sexual intercourse, penetration of the complainant’s mouth by the accused’s penis and of her genitals with his fingers. Although it is not entirely clear, it seems that on both occasions where the offender forced Ms Thompson to perform oral sex upon him, the offender was wearing a condom. However, this circumstance only came about because Ms Thompson was able to put a condom on the accused using her mouth in an attempt to protect herself.
50․The other offence of sexual intercourse without consent was one of rough and forceful digital penetration of the complainant’s vagina. The force used was such that the complainant’s genitals were injured. As I mentioned above a small laceration was found by the doctor who examined her after all this was over. The force used and the injury which resulted, increase the objective seriousness of this offence.
51․The offence of attempted sexual intercourse without consent involved the offender trying to penetrate the complainant’s genitals with his penis. In assessing the objective seriousness of that offence, I note that the accused’s penis did actually make contact with the complainant’s external genitals, and he only failed to penetrate the complainant because he could not get an erection. This was a very serious example of an offence of attempted sexual intercourse without consent.
52․I have already described the circumstances in which the offender committed the offence of sexual assault in the third degree. The offender rendered her powerless to resist, assaulting her by straddling her with the intention of forcing his penis into her mouth. I have to be careful not to double count here as some of the factors which inform the objective gravity of this offence also inform the objective gravity of the sexual intercourse without consent offence which followed.
53․The choking offence was yet another example of the offender exercising his dominion over the complainant in a violent, humiliating, and degrading way. Although it did not go on for a lengthy period, it was long enough for the complainant to have to struggle to breathe and for her vision to become blurry. In any case, the briefest act of choking can still be a serious offence, creating terror in the mind of the victim.
54․The remaining sexual offences for which the offender was found guilty by the jury are acts of indecency. In each case there was skin to skin contact, the offender licking the complainant’s buttocks on two occasions and then rubbing her buttocks and genitals with his hand. The offender seemed to want to lick the complainant’s buttocks in order to become aroused so persisted in what he was doing despite being told by the complainant she did not want him to do that. He repeated that conduct even though when he asked on the first occasion “doesn’t that feel good” the complainant said that it did not.
55․That brings me to the property damage offence which occurred when the offender punched the wall twice. Although damage was caused, it does not appear to have been extensive.
Moral culpability
56․It is difficult to draw a conclusion that the offender’s moral culpability is diminished by the mental conditions from which he suffers. Certainly, the psychologist was unable to do so because of the offender’s continued denial that he committed these offences. The offender is not to be punished for this continued denial, but it does make it difficult for him to persuade me on the balance of probabilities that his moral culpability is reduced because of his upbringing, depression, anxiety and PTSD.
57․On the other hand, those conditions remain relevant when I consider the circumstances in which the offender will serve any sentence of imprisonment. As I have often said, prisons are unpleasant places at the best of times, but for offenders who are depressed, anxious and suffering from PTSD they are even worse. I am satisfied that these conditions will make the offender’s time in custody harder than would otherwise be the case.
58․Ms Musgrove suggests that the offender is on the right path for effective rehabilitation because he shows insight into his mental health needs and has taken positive steps to address them. Whilst I accept this submission, not too much should be made of it in the absence of any satisfactory evidence that those steps would make it less likely that the offender would commit offences of this kind in the future.
Consideration
59․As is regrettably common when sentencing someone for serious offences, other innocent people will suffer. In this case the offender is stepfather and father to 2 children. His income is important. Since at least 2005 it has been no part of the law in this jurisdiction that hardship to third parties can only be taken into account if that hardship was exceptional: see DPP v Ip [2005] ACTCA 24. Accordingly, I will take into account the effect of sentence of imprisonment upon the offender’s family.
60․Despite the circumstance that the offender has no prior sexual offending on his criminal history, specific deterrence must pay a part in determining the appropriate sentence in this matter. But there are other principles of sentencing which play an even greater part, the most important of which is general deterrence.
61․As I have mentioned on a number of occasions now, sex workers are particularly vulnerable to offences of this kind. The very nature of their employment requires that they have sex with strangers when they are alone. The attitude that the offender displayed towards her, regarding her with disgust, may well be shared by others who use the services of a sex worker. Such people should know that if they go beyond what has been agreed and commit offences of sexual violence upon a sex worker who has made it clear that he or she does not consent, then the criminal law will mark the wrongfulness of such conduct with significant sentences.
62․Offenders are sentenced in order to protect the community of which sex workers are a part. They deserve the protection of the criminal law just as much as accountants, factory workers, doctors and bus drivers.
63․The principle of totality must be recognised in this matter. There is a substantial overlap between the various offences committed by the offender. What I must do is fix sentences for the individual offences, and then impose them in such a way that the overall sentence is one which is just and appropriate. Each extra offence added to the harm caused to Ms Thomson and prolonged the offender’s serious mistreatment of her. What the offender did in the early hours of 26 February 2021 was one continuous course of conduct lasting in the order of 15 minutes.
64․What I must not do is give any impression that an offender, having committed a number of serious criminal offences, will not be punished for going on to commit even more of those offences.
65․It was conceded that no sentence other than imprisonment is warranted and that thus the s 10 of the Crimes (Sentencing) Act 2005 (ACT) threshold had been crossed. However, it was then submitted that it was open to impose upon the offender a sentence of imprisonment be served by an Intensive Corrections Order. I do not agree.
66․It is a fundamental principle of sentencing, that the sentences should reflect the objective gravity of an offender’s conduct. Nothing less than a sentence of imprisonment involving actual custody would reflect that fundamental principle in the circumstances of this matter.
67․In any case, as will be shortly understood, the offender is not eligible to have his sentence of imprisonment served by means of an Intensive Corrections Order.
68․The parties relied on a number of what were said to be comparative cases, both from this jurisdiction and elsewhere. Of course, no two cases are the same, but I was able to gain some assistance from the cases to which I was referred.
69․When looking at those cases I paid greater attention to those cases from this jurisdiction. Sentencing is largely a local exercise with jurisdictions within Australia treating the same misconduct in differing ways, and with the administration of sentences being different as well. To give one example, whilst the maximum penalty for an offence of sexual intercourse without consent in this jurisdiction is 12 years, in NSW it is 14 years: see s 61I of the Crimes Act 1900 (NSW).
Orders
70․I sentence the offender as follows:
(1)The offender is convicted of the transfer charge (CC2022/6704).
(2)For the offence of act of indecency without consent (CC2021/1030) the offender is sentenced to 9 months imprisonment commencing from 17 November 2023 and ending on 16 August 2024.
(3)For the offence of act of indecency without consent (CC2021/1034) the offender is sentenced to 9 months imprisonment commencing from 17 February 2024 and ending on 16 November 2024.
(4)For the offence of act of indecency without consent (CC2022/6706) the offender is sentenced to 12 months imprisonment commencing 17 May 2024 and ending on 16 May 2025.
(5)For the offence of sexual assault in the third degree (SCCAN2022/97) the offender is sentenced to 18 months imprisonment commencing 17 September 2024 and ending on 16 March 2026.
(6)For the offence of sexual intercourse without consent (CC2022/6708) the offender is sentenced to 18 months imprisonment commencing 17 December 2024 and ending on 16 June 2026.
(7)For the offence of choke/suffocate/strangle (CC2022/6705) the offender is sentenced to 18 months imprisonment commencing 17 June 2025 and ending on 16 December 2026.
(8)For the offence of sexual intercourse without consent (CC2022/1032) the offender is sentenced to 18 months imprisonment commencing 17 December 2025 and ending on 16 June 2027.
(9)For the offence of attempted sexual intercourse without consent (CC2022/6711) the offender is sentenced to 15 months imprisonment commencing 17 June 2026 and ending on 16 September 2027.
(10)For the offence of sexual intercourse without consent (CC2022/6710) the offender is sentenced to 18 months imprisonment commencing 17 December 2026 and ending on 16 June 2028.
(11)For the offence of property damage (CC2022/6707) the offender is sentenced to 2 months imprisonment commencing 17 May 2028 and ending on 16 July 2028.
(12)For the offence of common assault (CC2022/6704) the offender is sentenced to 2 months imprisonment commencing 17 June 2028 and ending on 16 August 2028.
(13)The total sentence is 4 years and 9 months. I set a non-parole of 2 years and 6 months commencing on 17 November 2023 and ending on 16 May 2026.
(14)I recommend that officers of ACT Corrections on reception of the offender ensure that he is medically examined on the basis that he is a person at risk of acts of self-harm and may require immediate medical attention, particularly medication to treat his symptoms of depression/anxiety and PTSD.
(15)I dismiss the following transfer charges:
(a)Common assault (CC2022/1033);
(b)Common assault (CC2022/6702);
(c)Common assault (CC2022/6703);
(d)Common assault (CC2021/10460);
(e)Common assault (CC2022/6700);
(f)Common assault (CC2022/6701);
(g)Common assault (CC2022/6709)
| I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Berman. Associate: Date: |
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