Director of Public Prosecutions v Hudson McKenny (a pseudonym)
[2018] VCC 1065
•11 July 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL DIVISION
Case No.
| COMMONWEALTH AND STATE DIRECTOR OF PUBLIC PROSECUTION |
| v |
| HUDSON MCKENNY (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 3 July 2018 | |
DATE OF SENTENCE: | 11 July 2018 | |
CASE MAY BE CITED AS: | DPP v Hudson McKenny (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1065 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
For the Commonwealth For the State | Mr T Crouch Mr A Moore | Commonwealth Director of Public Prosecutions Office of Public Prosecutions |
| For the Accused | Mr M Woods | Tyler Tipping and Woods |
HIS HONOUR:
1 Hudson McKenny,[1] you have pleaded guilty to two settled indictments, one a Commonwealth one, and one a State one. The Commonwealth indictment has seven charges of procure a person under 16 years of age for sexual activity, six charges of transmit indecent communications to a person under 16, and four charges of groom a person under 16 years of age for sexual activity. The State indictment has one charge of indecent assault, one charge of use carriage service to cause child pornography to be transmitted, two charges of use carriage service to procure a person under 16, one charge of procure a minor for child pornography, one charge of produce child pornography, and three charges of sexual penetration of a child under 16.
[1] Hudson McKenny is a pseudonym.
2 The Commonwealth indictment, the charges carry maximum penalties of 15 years, seven years, and 12 years, respectively. On the State indictment, the maximum penalties are ten years, 15 years, 15 years, ten years, ten years, and ten years, respectively. As I have indicated, as I understand it, they are both settled indictments and you are to be sentenced on that basis. Your plea of guilty is to be taken into account, so far as you are concerned, remorse is problematic, but you must certainly get the utilitarian benefit of that plea. You have no prior convictions as such, but on 8 December 2015 you were found unfit to stand trial by a special jury, and the matters that were outstanding against you at that time have either been withdrawn or simply not proceeded with for technical reasons, which I do not have to go into here.
3 You are at the present time still a young person, in your mid-20s or early 20s, and I have to sentence you on that basis. In your situation, the principles of Verdins do not apply, and I will be going into that in very limited detail. Firstly, pursuant to the offending or the convictions for the offending, you will be placed on the sex offenders register, and I advise you that the reporting conditions will be for life, and I indicate that that will be sent to you immediately after this sentencing process by mail. I understand that the prison will give you one in any event. Also, because of the nature of the offending and the sentences I impose, you will be sentenced as a serious sex offender on Charges 3, 6, 7 and 8 of the State indictment.
4 I am aware that those sentences are to be served cumulatively unless otherwise ordered, and I will be ordering otherwise. Community protection becomes the principal sentencing purpose, and in your situation that is the case in any event, in my view, and the Crown do not ask for a disproportionate sentence. As I have indicated during the course of the plea, this is a very complicated matter, and what I have endeavoured to do is impose a sentence in a global way. I am sure that the sentence that I do impose in a few minutes time, could be reconstructed in other ways, and that is just the way it is, but it seems to me that this is a sentence that involves youth, totality and immaturity versus public protection and prolonged serious offending of the type that you have engaged in.
5 Pursuant to s.464ZF of the Crimes Act I make an order that you provide a saliva sample for DNA purposes. That order having been made, I must advise you that should you refuse to provide same, police may use reasonable force to take it from you. I also note, that there was a plea of guilty to three summary matters of committing an indictable offence whilst on bail, and I will be sentencing you for those as well. In this situation, as I indicated, there are, on the Commonwealth indictments certainly, matters that had, were they in isolation, I would not have sentenced you to be imprisoned. However, in your situation what I have done is given – with a number of those matters, given a short term of imprisonment and made it totally concurrent. It does not affect your status as a serious sex offender, so there is no disadvantage to you, and it effectively gets rid of the matters.
6 Insofar as summaries are concerned, what I am going to do is annex the State summary and the Commonwealth summary to these, my sentencing remarks. There is also a chronology which has been prepared by the State Crown, which is of great assistance in this matter, and were I to endeavour to go through the summaries in detail, I would virtually have to read out an entire chronology. I will direct that that also be annexed to these, my sentencing remarks. The situation is that State offending had occurred prior to you being found unfit to plead. Subsequent to that finding of unfitness to plead, you continued to offend and were offending during the whole process of it.
7 You have subsequently told police that you were unfit to plead, and it is a bit concerning. It is almost as if you have treated that finding of unfitness as something of a licence. You had the wherewithal to do no comment records of interview on a couple of occasions. What has occurred is that when you were found unfit to plead, there was ample psychiatric and psychological material that that was the case. What has occurred since is that it is now accepted that that material was not correct, and accordingly there is no application in regard to fitness to plead in front of me. What I do accept before I then do a very brief summary of all this, is that you are a person of low intellect, you are a person who is socially isolated, and although I note that you were in an age appropriate relationship, according to you, at the time of your ultimate imprisonment, that you are certainly more immature than your chronological age of 24, which I think it is, would indicate. So I take all those matters into account as I outline what you did.
8 The Commonwealth offending commenced after the fitness to plead hearing. It involved 17 charges of, as I have indicated, using the internet to endeavour to persuade and sometimes persuading young people, who you clearly were aware were underage, to engage in sexual activity, and some of it is for grooming. Most of the indecent communication charges, in my view, are probably fairly described as puerile, but it just indicates on your behalf, a capacity to offend in that way, having already had police interviews and being well aware of the wrongness of that offending. As I have indicated, there are some of those where you have offered bribery, there are some of those where you have – or at least certainly, at least one, where you threatened to effectively disclose material that had been obtained, and in some of those, obviously pornographic material was provided.
9 You would do, or commit those offences using a false identity, and each of those children thought that they were talking to somebody who was age appropriate. As I said, I think it would take me about an hour to read all that out, and I do not think I need to. What I have endeavoured to do is, other than the ones which I indicated I would not have given a custodial sentence for, I have tried to give an appropriate period of imprisonment. As I have indicated, what I will do will be starting a lot of those sentences today, and that sentence, the Commonwealth sentence will run concurrently with the State sentence, and after I made the declaration of time served, will have completed. So it is the State sentence that realistically is what you are going to be subject to from now on. Accordingly, I will be going through the State offending in a little more detail.
10 The first of that offending relates to the first victim. She worked or works locally, and the first occasion of this representative charge of indecent assault was her at a dance, where you came up to her, put your hand upwards along her inner thigh, as your hand reached her buttocks, she pushed you away and turned to confront you. She asked you to leave her alone. You stood there staring and smirking at her. About a half an hour later, you then approached her from behind and ran your hand up the inside of her thigh, and she told you to "Fuck off". The second occasion occurred within a couple of weeks of that first incident, when she attended the same bar, and pretty much the same thing happened. You were recognised by her when you were in the custody area of the police station, where she was at that time working. My understanding is that you denied the offending against her, but you ultimately pleaded guilty to it.
11 In early 2016, you created a fictitious Facebook profile in the name of Tom Johnson. You also had one in a female name, but that relates more to the Commonwealth matters. You were able to contact the second victim. She lived in Traralgon with her parents and younger sister, who is a victim in the Commonwealth matters. She has a mental disability and an IQ of 62. She has severe language disorder and autism and attends a – well attended then, certainly, a special development school, due to her disabilities. You knew clearly who she was and what her personal circumstances were.
12 On a day in October of 2015, whilst charges were already pending against you, and which ultimately I have said, about three times now, were found unfit to stand trial on, you telephoned her on her mobile and asked her to come outside so that you could speak to her because you were bored. She left her home and met with you outside. She walked with you into parkland. She sat on the ground and talked with you. During that conversation, you undid your pants and exposed your penis to her. You then started masturbating in front of her. That is an uncharged act. You then pushed her onto her back and lifted up her dress. You pulled her underwear down and got on top of her. You told her, "I'm going to have sex with you". You placed your hand over her mouth. You spread her legs open and introduced your penis into her vagina.
13 She told you to stop. Your response was, "No, I'm going to keep going until I've finished". In addition to telling you to stop, she also told you that she did not want to do anything. She is unsure if you heard her because you did not respond. She made several attempts to push you off her, but you kept getting back on top of her. She is unsure as to how long you kept your penis inside her, but you eventually withdrew. She does not know whether you wore a condom and whether you ejaculated or not. She was unsure of how to tell her mother about what had occurred, and the following day she wrote a letter to her parents, in which she disclosed that she had been sexually assaulted. She spoke with her mother, and disclosed that she had had sex, "I didn't want to. He made me do it. I'm sorry. Please don't hate me". She identified you to her mother as Hudson McKenny and told her mother she was worried about being pregnant.
14 She then received treatment in relation to that. As was discussed during the course of the plea, that is certainly not a sexual act that involving consent, and the reason it was not proceeded with as a rape is because there was concern that you may not have appreciated, or the Crown may not have been able to prove beyond reasonable doubt, that you appreciated that she was resisting. I note insofar as that is concerned though, that when you were interviewed in regard to the sexual penetration of her, you denied it, which would tend to indicate to me that you were aware. In any event, you are to be sentenced for sexual penetration of a very, very vulnerable girl, and I am making it very clear I am not sentencing you for rape.
15 Her mother put in a victim impact statement, which very clearly, very eloquently and very forcefully describes the dreadful consequences of your actions upon that girl. She suffers now, very badly from separation anxiety from her mother, and her mother said that she can get up to 40 phone calls a day from her, asking where her mother is and when will she be back. She now suffers from anxiety and panic attacks, she has lost all self-esteem, and has been having counselling ever since this happened. Her mother is struggling to get her to continue with counselling as she says she does not want to talk about it anymore.
16 Her mother also has been undergoing counselling, and has great difficulty with it herself. She said that her daughter just wants to hide herself away, that she used to play netball and loved it, no longer plays, and would not wear the uniform because it is a short skirt; covers herself up even in the summer. There are other aspects of the consequences of you did to that girl, that are in that victim impact statement, and I think it speaks clearly for itself and there is no need for me to take it any further at this stage. In any event, that gives rise to the charge of sexual penetration of a child under 16.
17 The third victim, a young boy who lived with his parents and sister. He is a keen sportsman and had a Facebook profile in his name. In early 2016 you contacted him via Facebook, using your Tim Johnson profile. During the course of those communications he told you that he was 14 years of age and you told him that you were 17 or 18 years of age. He did not know you as Hudson McKenny. You eventually suggested that you meet, and arranged a time to meet him when he would be alone. You went to the house where he was residing and were let into the house by him through the back door. You then went into his bedroom, you removed his pants and underwear and exposed his penis.
18 You introduced his penis into your mouth and performed oral sex on him, which gives rise to Charge 3, which is a composite charge, which has been explained to me as to be treated in the same way as a rolled-up count, not the same way as a representative count. That continued for approximately five minutes until he ejaculated. You then removed your own pants and underwear and started masturbating in front of him. You asked him to perform oral sex on you, which he did. He performed oral sex on you for approximately five minutes until you ejaculated. Immediately after that he said, you said that you had to go. You pulled your pants and underwear up and left the address by the back door.
19 On 14 December, you again contacted him by email and told him that you thought his penis was "cute", and he asked you not to tell anybody about the encounter. You told him that you would keep it a secret if he agreed to meet you again. You continued to ask him to meet you again and asked what it would take for him to say yes to meeting you, to which he replied, "Money". You agreed to pay him $70 and discussed where you could meet, suggesting you could do stuff in the car. There further offer of money and that conduct with him so far as the State charges are concerned continued on for some period of time.
20 On 21 December you contacted him, saying that you had arranged a threesome. He attended as had been arranged, but you did not attend. I understand that that charge relates into another charge, where you got another one of these victims to agree to such a thing. That is Charge 4 of use carriage service. Charge 5 of use carriage service to procure a person under 16, you have again, communicating with him and you sending photographs – photos of an unknown woman, saying that there could be a threesome, and I think again, I do not think I have to go into the details of all that.
21 The fourth victim, and again, she was contacted through Facebook. She was residing in the care of the Department of Health and Human Services. She was in a residential unit. You used your Tom Johnson profile to contact her, and she told you she was 15. She was in fact aged 14. You exchanged photos and you arranged to meet her. You asked if she would have sex in exchange for cigarettes. She said she would. You told her that if she had sex with you, you would give her those. You discussed where you would meet, you again asked her how old she was, and she told you she was 15. You went on to ask her if she was a virgin, and if you would get to, "pop her". She told you that she was a virgin.
22 Then further conversation about sex and alcohol, and you discussed with her the various sexual acts you wanted to do with her, including anal sex, and she agreed to take part in further acts in exchange for more alcohol. Again, I do not think I need to go through all the conversations that took place insofar as she is concerned, but you admit that in Warrigal parkland and in a backseat of a car, spoke for a bit and then you commenced kissing her. You then started to undress her, touched her breast and vagina, introduced your fingers into her vagina for approximately two to three minutes, which is part of the composite charge of sexual penetration. You asked her to perform oral sex on you, and she did.
23 You also introduced your tongue into her vagina and introduced two of your fingers into her anus. Again, those four acts are the composite charge. During that sexual encounter with her, you photographed her, and those photographs were found on your phone. You subsequently – that is with regard to – that is Charge 8 of produce child pornography. Charge 6, you again, endeavoured to prevail upon her. Charge 9, which is using a carriage service to procure. Again, I am not going to go through all the detail of that, the – these matters will be annexed in the sentencing remarks – was you, over a period of a month or so, pressured that is fair word, I think, into sexual – into having sexual conduct with you.
24 When you were arrested you made partial admissions, you – ultimately you were arrested on a citizen's arrest because some people had become very suspicious of you, and worked out who you were, and that relates to the Commonwealth indictment. You admitted parts of it, as I think I have just said. You denied other aspects of it, and with the Commonwealth matters, you basically, for most of them, said you simply could not remember. In short compass, as short as I can, bearing in mind the detail that has been properly provided by both the Crown and the State, that is what you are guilty of. The offending, despite your age and despite your immaturity, has to carry a significant period of custody.
25 It is objectively serious I think you clearly present, bearing in mind your lack of insight into all this, as a danger to the community. That becomes a difficult concept insofar as punitive aspects of this are concerned. Obviously it calls for general deterrence, in your case, very much specific deterrence, and there must be denunciation. I have before me a number of psychological and psychiatric reports, which date all the way back to when Judge Mullaly conducted the fitness investigation, and it would be an exercise in futility, I think, to go through all that. The facts of the matter are that, as I have indicated already, you are still young, you are psychologically immature, I have to sentence on that basis.
26 The prospects of your rehabilitation are problematic, though I will be giving a minimum term lower than I would otherwise have given, because of your age and potential prospects. If they can do something with you, that is – that is all good and well, but the risk of you reoffending as it stands at the moment, can only be regarded as high. Any future risk of reoffending will be determined by people other than me. All the psychiatric material has been tendered, and again, in this situation, rather than go on forever, I will direct that it remain on the file with the other documents, so that anybody with a genuine interest can access it and find out exactly what is going on.
27 Clearly you will do the sentence in protection, and I take that into account. You are and will be no doubt at Ararat. Your father goes up to see you once a fortnight, and you still have his support. As I understand it, you now have no relationship with your siblings since all this came to pass, and the female which with whom you say you were in a relationship at the time of your arrest, apparently no longer wishes to have anything to do with you. In any event, I sentence you as follows, and I will be doing the Commonwealth sentence first, and I apologise for this, but I have to ask counsel if they could follow this and make sure I have got it right.
28 On the Commonwealth indictment, Charge 1, one month; Charge 2, three months; Charge 3, six months; Charge 4, one month; Charge 5, one month, Charge 6, two months; Charge 7, one month; Charge 8, one month; Charge 9, three months; Charge 10, three months; Charge 11, one month; Charge 12, three months; Charge 13, three months; Charge 14, three months; Charge 15, one month; Charge 16, three months; and Charge 17, six months. I direct that Charge 1, Charge 3, Charge 4, Charge 5, Charge 6, Charge 7, Charge 8, Charge 11 and Charge 15 commence today. I direct that the sentence imposed on Charge 2 commence two months before the sentence imposed on Charge 3 expires.
29 I direct that the sentence imposed on Charge 9 commence two months before the sentence on Charge 2 expires. On Charge 10, I direct that that sentence commence two months before the sentence on Charge 9 expires. On Charge 12, I direct that that sentence be commenced two months before the sentence on Charge 10 expires. On Charge 13, I direct that that sentence commence two months the sentence on Charge 12 expires. On Charge 14, I direct that that sentence commence two months before the sentence on Charge 13 expires. On Charge 16, I direct that that sentenced commence two months before the sentence on Charge 14 expires. On Charge 17, I direct that that sentence commence three months before the sentence on Charge 16 expires.
30 So on the Commonwealth indictment, on my calculation, that amounts to 16 months. And I ask counsel to check that. I am pretty sure that is right – well not pretty sure, I am certain that is right. I direct that 554 [sic] days be reckoned as having been served under that sentence. Do those figures add up?
31 MR CROUCH: I'm sorry, Your Honour, I still haven't worked it work.
32 HIS HONOUR: Yes, yes. I just don't won't – I mean it doesn't, in a – the Commonwealth sentence has now been served, but I just don't want to be having to fix all this later. So I'm – I'm confident that that adds up to an effective sentence of 16 months, and I've declared the whole – well I'm going to declare it based on – on both charges, the 555 days, but I just don't want it to be – if you can just keep doing that for me, I'd appreciate it.
33 On the State indictment, the Commonwealth charges on the State indictment, are Charge 4, and the sentence will be six months to commence today; Charge 5, six months to commence today; and Charge 9, nine months to commence today. They are the three Commonwealth charges. On the State indictment on Charge 1, four months; on Charge 2, 36 months, on Charge 3, 36 months; on Charge 6, six months, on Charge 7, 36 months; on Charge 8, six months, and that sentence is to be served concurrently. On the three summary matters, one month on each to be served concurrently.
34 I direct that two months of the sentence imposed on Charge 1, 18 months of the sentence imposed on Charge 2, two months of the sentence imposed on Charge 6; and 24 months of the sentence imposed on Charge 7 be served cumulatively upon each other and upon the sentence imposed on Charge 3. As I say, I am doing that to make it clear. In all these circumstances, on the State indictment, which is to be served concurrently, obviously, with the Commonwealth indictment, the total effective sentence is six years and ten months. I direct that you serve a minimum term of four years before becoming eligible for parole, which will be a matter totally for the authorities, and as I have indicated I am doing that in case they can achieve something with you.
35 I direct that 555 days be reckoned as having been served under this sentence. On this - and it is an illusion in this situation because of the nature of the two indictments, but simply to indicate the benefit of the plea of guilty, pursuant to s.6AAA, though I suspect this is an invalid declaration, but for your pleas of guilty, you would have been sentenced to be imprisoned for a period of ten years, with a minimum of seven.
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36 That all makes sense?
37 MR MOORE: Yes, Your Honour.
38 MR CROUCH: Yes, the – the Commonwealth sentence add up.
39 HIS HONOUR: They add up. Thank you for that, and the State sentence, I'm sure that adds up.
40 MR MOORE: Yes, Your Honour.
41 HIS HONOUR: Righto.
42 MR WOODS: And Your Honour has declared the Commonwealth – the sentences on the Commonwealth indictment are concurrent.
43 HIS HONOUR: Well there's – they're finished. What – this is where this becomes – I mean just in case there's a problem, and I'm sure there isn't. Because they're on separate indictments, I can't put them on the same order, all right, I'm just not – I can't do that, and the State indictment has Commonwealth offending on it as well. So what I've done is – the actual Commonwealth indictment adds up to 16 months, which I've already declared, and I've declared it – the lot, to make sure there's – if there's any mathematical errors, it's covered. So that sentence, the Commonwealth sentence, is in reality now complete.
44 On the State sentence, starting now, concurrent with the Commonwealth sentence, is six years and ten months, with a minimum term of four years, which will commence from today. But declared on that sentence as well, is the 555 days, therefore he is in effect something like 18 months into the minimum term. Now that's my intention for the purpose of the document. I'm – I'm sure that that's what will be achieved.
45 MR CROUCH: Your Honour, just one – one technical matter is – you said it's on the Commonwealth indictment, being 16 months.
46 HIS HONOUR: Yes.
47 MR CROUCH: Because it's a period of less than three years, as I would understand the legislation, Your Honour would normally need to make that an RRO, but could in these circumstances just note that Your Honour waives that, and - - -
48 HIS HONOUR: Well I'm not – we need to do this during the plea. It's pointless, the sentence is finished. What, I'm going to give him a release date for four months ago?
49 MR CROUCH: Well - - -
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HIS HONOUR: No, I think – I'm just simply stating – and this – all this will all show up in the plea. To do a recognisance here would be preposterous, and
– and I'm doing it on the understanding that that sentence is now complete.
51 MR CROUCH: Yes. Sorry Your Honour, what I'm saying is, when there's a straight sentence of more than six months, Your Honour needs to just declare that you're waiving – not doing the RRO for that reason.
52 HIS HONOUR: Well I just did. I'm not - - -
53 MR CROUCH: Yes.
54 HIS HONOUR: - - - I'm declaring – I thought I just did. I'm (indistinct) of asked to make declarations. Yes, I'm not going to do it. If that's a declaration, you've got one, all right.
55 MR CROUCH: That's Your Honour's (indistinct).
56 HIS HONOUR: All right.
57 MR MOORE: That's a waiver.
58 HIS HONOUR: It's a waiver. Yes, all right. All right, the sex offenders register material will be sent to the gaol today, and the documentation will be marked as having been sent. What I'll do is now – if you – if you want to talk to him, Mr Woods, I can have the court cleared, and give you an opportunity to do that. My tipstaff will have to remain though. If you don't want to talk to him, we can just stop.
59 MR WOODS: Look that would be appreciated, Your Honour. It won't take long.
60 HIS HONOUR: Yes, all right. All right, well I'll leave the Bench, and if the courtroom could be vacated to allow Mr Woods just a minute to talk to his client.
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