Director of Public Prosecutions v Hudson (a pseudonym)

[2024] VCC 14

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRYAN HUDSON (a pseudonym)

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JUDGE:	BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	21 December 2023
DATE OF SENTENCE:	24 January 2024
CASE MAY BE CITED AS:	DPP v Hudson (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 14

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW    

Catchwords:              Sentence Indication – indecent act with or in the present of a child under 16

Legislation Cited:      Criminal Procedure Act 2009 (Vic) s 207, Sentencing Act 1991 (Vic), Sex Offender Registration Act 2004 (Vic)

Cases Cited:Soo v The Queen [2014] VSCA 304

Sentence:                  9 months’ imprisonment, wholly suspended for a period of 2 years

Section 6AAA declaration: had the accused not pleaded guilty a sentence of 9 months’ immediate imprisonment would have been imposed.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr Marcel White	Office of Public Prosecutions
For the Accused	Ms Stephanie Joosten	Dribbin & Brown Criminal Lawyers

HER HONOUR:

1Bryan Hudson[1], on 15 December 2023 you sought a sentence indication on one rolled-up charge of committing an indecent act with or in the presence of a child under 16. On the same day, pursuant to s 207(1)(a) of the Criminal Procedure Act 2009, I indicated that if you were to plead guilty, I would impose a wholly suspended term of imprisonment. On the basis of this indication your matter resolved, and you were arraigned on 21 December 2023 on indictment M12486570.1 and pleaded guilty to the charge subject of the sentence indication.

[1] A pseudonym.

2The maximum penalty for committing an indecent act with or in the presence of a child under 16 is 10 years’ imprisonment.

3This charge is a Class 2 registrable offence pursuant to the Sex Offender Registration Act 2004 and therefore carries a requirement that an accused become a registrable offender and report for a period of 8 years.

Circumstances of the offending

4The agreed factual basis for your offending is set out in the Summary of Prosecution Opening on Sentence Indication dated 13 December 2023. What now follows is a summary.

5You are currently 68 years of age. At the time of the offending, you were 53 years of age.

6The victim, Victoria Norris[2], was 9 years old at the time of your offending and was known to you as the child of your neighbours, Peter and Lisa Norris[3].

[2] A pseudonym.

[3] Pseudonyms.

7You and your wife become good friends with the Norris’s after they moved into your street. You would go to each other’s homes for dinner and sometimes went on holiday together.

8At some point you began to babysit the Norris’s two daughters. The victim was aged about 8 or 9 when this arrangement started. The victim’s sister is 18 months older.

9One evening in the period from April to June 2009 you agreed to look after the victim and her sister whilst their parents were busy. You collected them from gymnastics and brought them home.

10Later in the evening the victim and her sister went to bed in their separate bedrooms.

11At some point, the victim awoke to find you in her bedroom. You removed your penis from your trousers and took hold of her hand and placed it on your penis. You then reached under her doona and rubbed the exterior of her vagina. At the same time, you placed your penis on her mouth and rubbed it along her mouth.

12After several minutes you left the victim’s room and then returned. The victim began to cry, and you told her to ‘shush’ before leaving the room again.

13Following this incident, you continued to periodically babysit the victim and her sister until their parents no longer needed your help.

14When the victim was 13 to 14 years old, she told a school friend that she had been sexually assaulted by a neighbour. Around June 2020, the victim told her parents and another friend that she had been abused by you.

15In April 2021, the victim’s mother visited you at your home and recorded a conversation with you during which she confronted you about the offending. You admitted to Ms Norris that you had placed your penis in the victim’s hand but you couldn’t explain why you had done it.

16The matter was reported to police, and you attended Frankston Police Station for interview in May 2021. In this interview you admitted to placing the victim’s hand on your penis and you thought you may have accidentally touched her vagina when pulling up her doona. At that time, you denied  rubbing your penis on her mouth.

Victim Impact

17There is absolutely no doubt that the ramifications of your offending have been profound and wide reaching. Tendered on your plea hearing were victim impact statements from the victim Victoria Norris, her mother Lisa Norris, her father Peter Norris, her paternal grandfather, her paternal grandmother and her maternal grandmother.

18Victoria Norris courageously read her victim impact statement to the court. Ms Norris described how your offending has impacted her every single day since it happened.  The impacts she describes include fear, dread, confusion, sadness, loss and trauma. This was made worse by your constant presence in her life and her childhood memories are tainted because you were there.

19Further, Ms Norris described that because you acted normally, she felt she had done something wrong and lived with guilt and shame for many years. This caused her to withdraw from people and also caused her to have a fear of all men. Your relationship with the Norris family was a factor as to why Ms Norris kept all her hurt and trauma to herself for many years. She felt her parents would hate her for destroying their trusted and close friendship with you. Ms Norris’s relationship with her family suffered as a result.

20Even now 13 years on, Victoria Norris described her ongoing trauma that continues. It has impacted her ability to study and focus and has caused her to suffer a lifetime in pain.

21Peter and Lisa Norris in their victim impact statements both speak of their overwhelming sense of betrayal and also their overwhelming and lifelong feelings of guilt, sadness and shame for not being able to protect their daughter. Your presence in their lives as a trusted neighbour is now not only a constant reminder but it also serves to taint the many family gatherings and celebrations you attended. Your ongoing presence living close by continues to be distressing to the family.

22Lisa Norris described how she was forced to relive painful memories. Peter Norris described that as the one who introduced you to his family, he now questions his ability to judge character. Your abuse changed their daughter who pushed them away and avoided their touch. Both Lisa and Peter have felt anguish and upset not knowing how to help their daughter.

23Victoria’s maternal grandmother described how your offending has affected her relationship with not only her granddaughter but also her daughter. Further, she described the change she saw in her granddaughter and how she laments the fracture your offending has caused within her family.

24Victoria’s paternal grandparents, described how they each feel sad, horrified and angry about what you have done to their granddaughter. They both noticed their granddaughter change and withdraw and neither of them knew how to communicate with her, something they both feel guilty about.

25At the end of his victim impact statement Victoria’s grandfather said the following – “But the more important impact for me apart from my grief and loss is seeing the way Victoria has grown to face you and learned to draw on an inner strength that sees you here in court. I am so grateful to Victoria for showing me and her family her courage and dignity”.

26I have taken the contents of the victim impact statements from Victoria Norris and her family members into consideration in determining the penalty I am about to impose upon you.

Gravity of the offending

27Sexual offences against children are some of the most serious matters heard by the courts. This is reflected both in Parliament’s legislation and commentary by higher courts about offences of this nature.

28The law is clear that the protection of children from exploitation by those with more power and maturity is a paramount consideration for our community. All sexual offences against children carry with them a presumption of 'long term and serious harm, both physical and psychological’. In your case the delay has allowed the court to witness such harm firsthand.

29Your particular offending is aggravated by the significant age gap (44 years) between you and the victim, and the breach of trust derived from your role as her babysitter and trusted family friend.

30Your close relationship with the victim’s parents and the ongoing role you had caring for their children would have led them to believe that their children were safe in your care. The victim would likewise have felt she was in the care of someone she could trust.

31The offending occurred when the victim was alone at night in her bedroom, a place where ordinarily people, and in particular children are entitled to feel safe from any kind of nefarious interference.

32Authority from the Court of Appeal has held that offending combining the aggravating factors of significant age gap and breach of trust is sufficient to place the conduct in the category of a serious example of this type of offence.[4]

[4] Soo v The Queen [2014] VSCA 304.

33The charge you have pleaded guilty to is a rolled-up charge that encapsulates the three separate actions of placing the victim’s hand on your penis, rubbing her vagina with your hand and putting your penis on her mouth. This elevates the seriousness of your offending compared to a charge relating to any one of those actions in isolation.

34Though you must be sentenced on the basis that the rolled-up charge encompasses several separate acts, it nonetheless is a charge which relates to a single incident of short duration.

Personal circumstances

35I now turn to your personal circumstances.

36You are currently 68 years of age, and you were 53 at the time of the offending.

37You had an unremarkable childhood growing up with your parents and younger brother.

38You attended school until Year 10 and then left to join the Royal Australian Air Force. During your 20-year career in the Air Force you achieved the rank of Flight Sergeant.

39You left the Air Force in 1992 and worked in logistics roles until your retirement in 2018.

40You have been married to your wife, Betty, for 43 years and you have two sons and two grandchildren.

41Your grandchildren have been in kinship care for many years and their primary carer is their great grandmother who is aged in her 80’s. You and your wife have an active role in their lives, and they frequently stay at your home to spend time with you and provide some respite to their elderly carer.

42Your father passed away in 2001 and your mother re-partnered. Your mother and stepfather are now aged in their 90’s and recently moved into aged care due to health issues. You visit them weekly and help them attend their appointments.

43You have no current or prior issues with drugs or alcohol, and you have no prior criminal history.

44For the purpose of these proceedings, you were assessed by David Ball, forensic psychologist, who found that you have general good psychological functioning and you do not meet the diagnostic criteria for any mental illness. He did however conclude that you were experiencing situational anxiety and depression related to the court proceedings that were likely to abate when the court matter finalised.

45In references provided to the Court, members of your family also attest to the fact that your mental health has suffered since your offending came to light. Your wife, Betty, describes you going into a ‘deep depression’ following your admissions to her about what you had done and that it took some time for you to agree to obtaining a mental health care plan.

46A brief letter provided by psychologist, Kim Dowse, confirmed that you have attended several sessions with her for treatment of your mental health and developing insight into your offending behaviour.

Procedural history

47At the time of the police interview in May 2021 you made admissions to some of the acts alleged by the complainant and negotiations began at an early stage with a view towards resolution.

48On 29 March 2022, prior to the Committal Hearing, an offer was made on your behalf to plead guilty to an indecent act charge encompassing the same acts as the charge you have now pleaded guilty to. This offer was rejected by the prosecution who at that stage would not consider a resolution without penetrative offences.

49As a result, the Committal Hearing was held in May 2022 and the complainant and other witnesses were cross-examined. Following this hearing, the prosecution put forward a resolution offer in the same terms as the offer put by defence prior to the Committal.  

50Following the Committal Hearing, defence had concerns about the reliability of some of the evidence which required further exploration. The prosecution’s offer was therefore rejected. The matter then came before me for Case Conference on 19 September 2023.

51The outcome of this hearing was an agreement between the parties that defence would seek a sentence indication in relation to the single rolled up charge of committing an indecent act with or in the presence of a child under 16.

Plea of guilty

52Though your plea of guilty at this stage cannot be considered a plea of guilty at the earliest possible opportunity, it is clear that there was an early intention to resolve the matter following partial admissions you made to the victim’s mother and the police.

53The prosecution concedes and I accept that the Committal Hearing and subsequent Case Conference occurred on the basis of the presence of legitimate triable issues and a need to further explore the complainant’s account.

54Illustrative of this fact is the removal of the penetrative offences from prosecution offers following the Committal Hearing. In their submissions on the indication, the prosecution explicitly conceded that triable issues remained following Case Conference. In this sense, I consider your plea to be valuable and a real indication of your desire to facilitate the course of justice.

55I further take into account that the ultimate resolution to the single rolled up charge mirrors the offer made on your behalf 2 years ago, in March 2022, prior to the Committal Hearing.

56A plea of guilty at the present stage retains significant utilitarian benefit in avoiding what would be lengthy and complex pre-trial hearings anticipated for this matter, as well as the trial itself which would require the complainant to go through the difficult process of giving evidence a second time.

57Though the backlog of cases caused by the COVID-19 pandemic has now substantially cleared, I accept that at the time your matter entered the court process, the backlog was a relevant consideration. I therefore consider an added discount is appropriate for your plea of guilty.

Remorse

58I accept that there is evidence of early expressions of remorse and accountability on your behalf commencing at the point of the conversation with the victim’s mother and continuing through the police investigation. However, this must be tempered by the fact that you continued to live in the same court and remained in the lives of your victim and her family.

59When speaking with Ms Norris on 27 April 2021, you admitted you had done the wrong thing when the topic was raised. You said that the embarrassment and guilt of what you did had been on your mind ever since. You also said “I’m so sorry, I’m so sorry to Victoria”. Later in this conversation, you apologised again to both the victim and to her parents.

60During your record of interview with police you described your offending as ‘five seconds of stupidity’, that you had felt ‘instant guilt’ afterwards and wondered how you could have done what you had to the victim and her parents.

61The references provided by your family also speak to your immense self-hatred and distress since you have been confronted with your offending and the subsequent legal process.

62Both psychologists, Mr Ball and Ms Dowse, described your distress when discussing the offending. Ms Dowse, who saw you on a number of occasions, said you were visibly distraught when discussing what you had done. She said you expressed remorse about how your actions have affected the victim and her family.

63In oral submissions the prosecution noted that despite your purported guilt from the time of offence, in the intervening years you made no attempt to disclose or take responsibility for what you had done. I agree with this submission however, I do not consider this means your current expressions of remorse derive solely from the negative effects of these proceedings. I accept that you feel embarrassed and guilty about what you did to the victim and about the effects it has had upon her.

64Your early admissions and attempts at resolution in my view are illustrative of reflection and regret for your offending. Your ultimate plea of guilty to this charge is a further demonstration of remorse and a willingness to be accountable for your despicable actions.

Good character

65As previously referenced, members of your family including your wife, and your older brother, provided references on your behalf. Each of them remains supportive of you.

66Both affirmed that your offending conduct is an aberration from your otherwise exemplary behaviour as a considerate and dedicated father, grandfather, uncle, brother, son and husband.  

67Your wife explains that you have always been a constant source of stability and support for your family and you have done everything possible to facilitate their passions. This includes being active in your sons’ sporting endeavours and supporting her desire to work in remote communities.

68Both references also note that you have now taken on additional responsibility in your retirement for your elderly mother, stepfather and grandchildren, all of whom have particular needs.

69Prior good character, including a lack of prior criminal history, are not unusual characteristics of offenders charged with offences of this nature. Because of the ability of good character to build the kind of trust that facilitates the commission of these offences, generally it is afforded less weight than it otherwise would carry in the sentencing exercise.

70Nonetheless it remains relevant in developing a sentence that is appropriate in all the circumstances. Further, I consider it a relevant factor in your favour that despite numerous other instances of contact with other children, including some ongoing contact with the victim, there are no charges or allegations of sexual offending against the victim or any other child on any other occasion.

Delay

71Delay has some relevance to your matter, both in terms of delay between offending and charge, which was not insignificant (13 years), and between charge and sentence.

72In your case there were some delays arising from the negotiations and hearings that occurred to try and resolve the matter. However, as previously discussed I accept that there were valid reasons that the matter did not resolve on the basis of the original charges.

73It should be noted that delay is a common feature of sexual offence matters which derives in part from the reluctance or inability of complainants to disclose the offending for a multitude of legitimate reasons.

74The effects of delay still have some mitigatory impact if, as in your case, the person has ceased offending in the intervening period and is able to demonstrate rehabilitation. Therefore, I consider that delay mitigates your sentence to a degree.

Sentencing purposes and principles

75The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.

76The principles of general deterrence, just punishment and denunciation are all predominant sentencing considerations in relation to charges of sexual offending against children. This is particularly so in the context of the aggravating features of breach of trust and a significant age gap between the child and the offender.

77The letters of your family in combination with those of psychologists Mr Ball and Ms Dowse illustrate that the seriousness of your offending has been brought home to you. Your counsel also submitted at your sentence indication hearing that the child protection involvement resulting from your charge for this offending has interrupted the previously mutual beneficial arrangement in place for caring for your grandchildren at your home. Your counsel anticipated that a conviction for these charges would likely prevent a return to that arrangement in the future.

78In light of the absence of a prior or subsequent criminal history, your expressions of remorse and the very confronting consequences these proceedings have had upon you and your family, I consider specific deterrence to have less significance in your case.

79Your lack of prior and subsequent offending and the support of your family are indications of good prospects of rehabilitation. You have also demonstrated a willingness to develop insight into your offending and engage with treatment.

80In his report psychologist, Mr Ball, noted denials on your part of an attraction to young children or teenagers and opined that you are ‘likely to present with few, if any, challenges in terms of [your] safe management in the community’. Ms Dowse described you as an ‘impressive client’ who demonstrated a high level of insight and a determination to do whatever was necessary to understand and prevent the same behaviour occurring again.

81Though often a relevant consideration in sexual offences involving children, for the same reasons mentioned above in relation to your prospects of rehabilitation, I do not consider community protection to be of great concern in your case and this purpose will be best fulfilled by allowing you to maintain your positive connections in the community and continue to engage with treatment.

82I take into account the sentencing guidelines referred to in s 5 of the Sentencing Act 1991, where relevant to your case. I have also had regard to the sentencing landscape for this offence. I was assisted in this by a number of cases provided by your counsel which, though not completely comparable, provided a useful overview of sentencing practices for this offence, both as it currently stands and at the time of the offending. Though the sentence I impose is not circumscribed by these cases or current sentencing practice, they usefully illustrate a range of sentences including Corrections Orders and terms of imprisonment, both wholly or partially suspended.

83Ultimately, the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.  The principles of proportionality and parsimony are also important considerations here. I have taken these principles into account in fixing the sentence I impose.

Disposition

84Mr Hudson if you could please stand. In relation to the rolled-up charge of committing an indecent act with or in the presence of a child under 16 you are convicted, and you are sentenced to a term of 9 months’ imprisonment. I intend to wholly suspend this term of imprisonment for a period of 2 years in the circumstances of your case.

85Mr Hudson I must explain to you that if you commit another offence punishable by imprisonment in the next two years then you will need to show exceptional circumstances that have arisen since this hearing that would justify why you should not serve 9 months immediate gaol. In other words, if you breach the suspended sentence in all likelihood you will serve immediate gaol.

86Pursuant to s 6AAA of the Sentencing Act 1991 if not for your plea of guilty I would have sentenced you to nine months immediate imprisonment.

87Pursuant to s 11 of the Sex Offender RegistrationAct 2004 I declare that you are a registrable offender as you have pleaded guilty to one Class 2 offence. Pursuant to s 34 of the Sex Offender Registration Act 2004 you are required to report for eight years.

88There is some paperwork that we will have or are about to generate that details your obligations under the Sex Offender Registration Act. I need you to sign an acknowledgment that you have received that information from the court. I do not need you to read through it and understand it straight away, and I expect your counsel  has probably explained some of it to you and will assist you with that, but what I need you to do is sign, acknowledging that you have received it.

89Counsel is there anything further?

90MS JOOSTEN:  No, Your Honour.

91HER HONOUR:  Mr White?

92MR WHITE:  No, that was all clear, thank you Your Honour.

93HER HONOUR:  All right, so we will generate the material from the Sex Offender Registration and we will print that out and I will get you to sign for that.

94Can I just acknowledge to the victim and her family members that are present, just thank them for being involved in the proceedings, and Victoria thank you for reading out your victim impact statement. It can't have been easy and it was very brave of you to have done that.  I just want to reassure you that you have been vindicated, you have been believed, and that I have definitely taken into account what you have had to say, as well as that of your family.  Also I wish you all the best in the future.  I hope that the finalisation of this matter,  I don't think it's  going to cure everything, but I hope it  is a step in the right direction and that you can put it behind you a  bit, better.

95Just lastly can I thank both counsel, so Mr White and Ms Joosten, for the manner in which you have run this case; from case conference to the plea to the sentence indication, both of you have presented submissions of a really high standard and both of you have been of great assistance to the court.  I want put that on record.

96MS JOOSTEN:  Thank you, Your Honour.

97HER HONOUR:  I will sign the first page and then I will stand down.

98MS JOOSTEN:  It may be required on the final page as well, sorry Your Honour, I noticed there was another as part of the acknowledgement.

99HER HONOUR:  Thanks very much.