Director of Public Prosecutions v Huges

[2014] VCC 1507

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ARTHUR HUGES (a pseudonym)

---

JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 August 2014
CASE MAY BE CITED AS:	DPP v Huges
MEDIUM NEUTRAL CITATION:	[2014] VCC 1507

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Finnigan
For the Accused	Ms M. Altman

HER HONOUR:

1Arthur Huges[1], the jury has found you guilty of two charges of gross indecency, three charges of indecent assault, 11 charges of incest and two charges of indecent act with or in the presence of a child under 16 years.

[1] A pseudonym

2The facts underlying your offending are as follows:  Can I say, that whilst I am mentioning the true names of everyone, pseudonyms will be inserted when this matter is revised and no identifying names will be then used.

3There are two victims of your offending, your daughter Catherine[2], who was born on 17 April 1980, who was aged between four and 15 years when the sexual abuse against her occurred.  And your daughter Emily[3], born 8 January 1979, who was between three and 15 years of age when she was sexually abused by you.

[2] A pseudonym 

[3] A pseudonym

4Charges 1 to 7 related to your daughter Catherine.  Charge 1, gross indecency occurred when she was about four.  You came into the bedroom where she playing with her sister and began tickling both of them.  The incident progressing to where you showed them your penis and said "Girls were allowed to touch it".  Catherine then patted it.  You told the girls that they were not to talk about it, that it was something only daddies could do and if they did tell anyone, they would be locked inside the bedroom.  You then shut the door which could not be opened from the inside.

5Charge 2, indecent assault, occurred between 1989 and 91 when Catherine was aged nine to 11 years and sitting on your knee, watching the movie Indiana Jones and the Temple of Doom, a blanket covering both of you.  You placed your hand between Catherine’s legs and put your finger or finger inside her vagina.

6Charge 3, incest, occurred in 1992, when Catherine was 12, during the 1992 Olympics at which time your wife was in America with a friend and Catherine at home sick with you looking after her and she lying in your bed.  You got her an icy pole and then penetrated her with your penis.  Catherine tell you, "I don't like it and it hurts", and you saying, "It was part of the privilege of being in your bed and that she should grow up."

7Charge 4, indecent assault, occurred in 1993-4, when Catherine was aged 13-14 years and she was in the bedroom she shared with her sister.  Naked on the bed with her hands tied together to the vertical wooden bedhead bars.  You told her to get into different sexual poses and moved around taking pictures with a camera.

8Charge 5, a charge of sexual penetration, occurred in 1995, when Catherine was 15 at Mount Buller, where you and your family regularly went during the snow season, having a share in a lodge there.  On an occasion as Catherine sat on the top bunk of her bedroom with her legs over the edge, you licked her vagina on the inside and out.

9Charge 6, sexual penetration occurred in 1995, when Catherine was aged about 15, again at Mount Buller, after she was discovered by you drinking at a pub with other friends and you took her back.  There you sexually penetrated her from behind while she was standing behind the bed, naked from the waist down.  You apologised for being quick and rough and kissed her vagina better over her clothes, then went out saying you were going back to the pub with her sister.

10Charges 7-19 related to your daughter, Emily.  Charge 7, an indecent assault on Emily in 1984, when she was three or four years old, occurred after a visit to a family friend's farm in Drysdale.  On the way home, your son Thomas[4] broke his arm at a McDonald's playground where you had stopped.  You then taking the two girls while your wife went to the hospital.  You came into Emily’s bedroom, turned off the light and lay behind her in the spooning position, placing your hand on her vagina, moving your hand in a circular motion, then moving your hand to her chest area then back to her vagina, placing your middle finger into her labia area and continuing to make the circular motion.

[4] A pseudonym

11Charge 8, an indecent assault in 1983 to 85, when Emily was aged three to four years, occurred when your family visited another family, Alinda, on a food and wine family barbeque day.  Emily had wet her pants was taken by you to a shed where the family car was to change her clothes.  As she sat in the car with her legs half hanging out the door, you took off her shoes and pants, and you inserted your fingers in her vagina, circling the walls of her vagina.

12Charge 9, gross indecency, occurred in 1989 when Emily was aged nine or ten years of age at Robertvale, when you were all visiting your cousin's family during the holidays.  Catherine and Emily got into bed together and both were naked.  You placed your hands on both her and Catherine’s chests, Emily being self-conscious as the two girls were developing breasts.  She recalled posing for you, sticking her body out in a sexually provocative way and Catherine parting her legs and you with your Kodak camera around your neck.

13Charge 10, sexual penetration, occurred in 1992-93 when Emily was aged between 13 and 14 at the family home in Prahran when she was in year 8.  You removed her stockings, she having one leg out and placed your hand up her skirt and put your fingers inside her vagina.

14Charge 11, sexual penetration, occurred in 1992 when Emily was aged between 13 and 14 and was on her own at home with you.  You got into bed with her and put your hands between her legs and penetrated her vagina with your penis, during which you were completely naked and penetration occurred for about five minutes.  It seems there was ejaculation as Emily recalled having to wipe herself when she went to the toilet.

15Charge 12 occurred in 1992-3, when Emily was aged between 13 and 15, on a Saturday afternoon at the family home in Prahran, when you took her to her bedroom, bent her over the mattress and penetrated her vagina with your penis and made her touch it.  Emily’s friend, Alex, who had been invited over to play suddenly arrived and you immediately withdrew your penis and prevented the bedroom from being opened by Alex, saying you were getting something from the wardrobe.

16Charge 13 is sexual penetration, occurred between 1992 and 94, when Emily was aged 13 to 15, again at the family home on a Saturday afternoon when there were only she and you in the house.  She was in her bedroom and you again penetrated her with your penis at that time, hitting her on her left breast with your closed fist, causing bruising which was later noticed by her mother.

17Charge 14 is an indecent act which occurred in 1992-3 when Emily was 13 or 14 and she was talking to you about orgasms, and you wanted to perform one on herself in front of you.  She said this, in fact, happened three or four occasions, but on this occasion you moaned while she was masturbating saying, "Oh yeah", while she was lying on the bed doing this for you.

18Charge 15, sexual penetration, occurred between 1992 and 94, when Emily was aged 13 or 14 at Mount Buller.  She said you were standing in the room after she was changing after a shower, then hugged her while she was naked, rubbed her body, complimented her on losing weight, then got her to make a hot water bottle and lie down next to you on the bed.  You then penetrated her vagina with your penis, the act continuing for about ten minutes.  And Emily afterwards going to the toilet and wiping herself with tissues.

19Charge 16, an act of sexual penetration, occurred between 1993 and 95 when Emily was aged between 14 and 16, again at Mount Buller, on the second morning after arriving there.  As Emily was changing to a ski outfit you had brought back from America, whilst putting on her tights, you put your hands between her legs, in her underpants, and inserted your finger in her vagina, trusting against her clitoris and causing her immense pain.

20Charge 17, sexual penetration, occurred in 1994 when Emily was aged between 14 and 15 at Jan Juc where the family had taken a holiday house.  At the top of the stairs of the house, your pressed her against the wall and inserted your penis into her vagina whilst she was standing after using her finger to open the walls of her vagina.  You raised her leg to give you better access then withdrew your penis and stroked with your own hand.

21Charge 18 is a charge of sexual penetration between 1994 and 95 when Emily was aged 15, over the Christmas/New Year period, when you took the two girls on a holiday by car.  The three of you spent the first part of the holiday at a place called Scrubby Creek, on a friend's property, where you stayed in a circular structure, known as a yurt.  On one occasion, when you and Emily were in the yurt, you forced her against the wall and while she was in an upright position, inserted your penis into her vagina from behind.  She said you smelt strongly of alcohol and believed you ejaculated.  She said she suffered a great deal of pain during that incident, she had large painful boils on her thighs between her legs.

22In addition to evidence of specific acts comprising charges on the indictment, further evidence of numerous uncharged acts comprising sexual abuse throughout the duration of the ten years of the sexual abuse inflicted upon your daughters was led.

23Emily and Catherine both gave evidence of you encouraging them to engage in sex plays together while you watched.  The evidence of Catherine was more detailed in this regard, describing a game encouraged by you of "Mothers and Fathers", whereby she and Emily were directed by you to undertake sexual acts upon each other.

24Catherine described a number of game you played with her, including the "Wicked Witch" game involving sexual touching and indeed penile penetration.  Both girls described you photographing them naked and some of the uncharged acts related to periods of time when you and your family were living outside Victoria,  specifically in America where you all lived for several years, whilst you worked there and on an occasion in Sydney.

25Overall, the evidence of both the charged and uncharged acts have painted a picture of persistent sexual abuse over about a decade, in relation to each daughter, where you sexually abused them brazenly, opportunistically and as of right.  In giving the descriptions that I have of each of the charges of which you have been convicted, and as to the sentencing remarks generally, I also attach the very detailed prosecution summary prepared in this matter as an exhibit, as well as the sentencing remarks of His Honour Judge Howard, who presided over the first trial held in relation to these matters in 2010.

26I now turn to your personal circumstances.  You are 68 years old, the eldest of two boys born to your parents; your father running his own jewellery business.  He died when you were seven  You were then raised by your mother whom you have described to psychologists, Peter Stanislowski in 2010 and then Simon Candlish in 2014, as a wonderful woman.  Your mother never remarried and the family lived in a dwelling behind a mixed business, which had been purchased prior to your father's death.

27You completed Year 12 at Hailebury College where you received high marks and obtained a scholarship to Melbourne University to study medicine.  During your studies, you began working as a research assistant in the School of Veterinary Science and came to the conclusion you did not want to be doctor, worked for Honeywell, then returned to undertake a Bachelor of Economics at Monash University in 1976 on a part-time basis.

28You worked for Honeywell for six years and held senior positions at Phillip Morris for five and a half years, and Kodak for 11 years, then Motorola for two years before starting your consultancy business.

29In the early 1980s you moved with your family to America for three years whilst you were working for Kodak.

30In 1995, after leaving Motorola, you became involved in the start-up company Australia Wide Loading and then became a consultant to the wine industry between 2003 and 2004.

31You obtained a Masters in Entrepreneurship from Swinburne University and began doctorate studies in transport and logistics in 2005 and were also a sessional academic at the University of Melbourne, in the School of Engineering between 2004 and 2005.

32You married in 1971 and have three children, Thomas, Emily and Catherine.

33You and your wife separated in the early 90s and were divorced in 1994.  She works as a teacher, specialising in educating suffering disabilities.  You no longer have any contact with your former wife or daughters, but are supported by your son.

34You continue to deny the charges of which you have now been twice convicted.  A jury found you guilty of 17 charges, including 11 counts of incest in a trial which began on 3 May 2010 before His Honour Judge Howard.

35You then successfully appealed against these convictions to the Supreme Court of Appeal and the matter was retried before me in May of this year.  There are some small differences between the charges you faced in 2010, the charges of which you were convicted this year.

36In the 2010 trial, the jury were unable to reach a decision on the allegations contained in Charges 7 and 8 of this trial, of which you have now been convicted.

37Charge 24 on the indictment of the previous trial was not proceeded with on this trial.  Therefore, you have been convicted of two additional indecent assaults compared with the earlier trial, but with one fewer charge of indecent act.  One lesser charge, a charge of indecent act, compared with trial one.

38You were granted bail in November 2013, when the decision uphold your appeal was handed down by the Court of Appeal.

39You have a number of health difficulties, you suffer from sleep apnoea using a CPAP machine.  You also suffer from Pelvic Girdle Muscle Weakness, giving you trouble in getting out of the sitting position.  You have a tremor in both hands, subluxation of both kneecaps, hearing problems, difficulties with vision particularly in the left eye and there have been some ECG changes noted with your heartbeat which is of some concern giving a strong history of ischemic heart disease in your family.

40Psychological testing as to your risk of recidivism in particular as regards further sexual offending administered both in 2010 and 2014 was assessed as low.

41Victim impact statements were submitted and read out in court by Emily, Catherine and your former wife, Gillian.  Unsurprisingly, each has been gravely affected by this most serious offending.  In her victim impact statement, Emily wrote eloquently of her ongoing physical, psychological and emotional difficulties.  Shockingly, she continues to suffer from ongoing gynaecological issues including sores, inflammation and lack of protective skin in and around her vaginal area which conditions flare up according to the level of stress she is suffering.  She has had extremes in weight gain and loss, has a debilitating fear and dread of physical touching or emotional contact from other adults and describes a complete inability to touch her own body, to heal or self sooth.  She daily struggles with self-loathing.  Her career prospects have been directly and adversely affected by your abuse of her.  She struggles against self-sabotage, she is terrified of her frailties and has an inability to trust her own judgment.  She has been diagnosed with post-traumatic disorder, a dissociative identity disorder, depression, extreme anxiety and borderline personality disorder, all of which require constant psychological and medical treatment.

42Her relationship with her sister, as is so often the situation in cases of this cases of this kind, has been utterly undermined.

43In her victim impact statement, Catherine spoke of the vaginal pain she suffered on penetration by you, turning to drug use in order to deal with this, suffering years of insomnia and nightmares, suffering anxiety and depression, receiving a diagnosis of post-traumatic stress disorder and depression and continuing to struggle with significant issues of trust and self-worth.  She stated that she struggled to let herself become emotionally involved with others and tended to push people away, "before they can hurt me".

44She has difficulties with physical intimacy, suffers panic attacks, requires anti-depressants and also suffers from flashbacks.

45Your former wife struggle for many years with grief, a sense of failure and guilt, "as a mother of three children who have been so violated and abused throughout the childhood and teenage years."  She described the guilt and anger as all-consuming, leading to strong suicidal thoughts, depression and symptoms of post-traumatic stress disorder.  She spoke of Emily’s debilitating mental health issues, her daughter Catherine coping by turning to other extended families, with the breakdown in the relationship between her daughters and the breakdown in the relationship with her son, who continues to support you and believe you.

46She takes anti-depressants daily and undergoes continuous counselling.

47Each victim impact statement courageously read out in court by their authors were redolent of the extraordinary pain, suffering and daily struggle experienced by each of them, which is the appalling legacy of your offending.

48Hopefully, the resolution of this second trial will lead to some diminution in their ongoing trauma.

49Your offending is a serious example of serious sexual offending.  Notwithstanding, the wealth of material covered by the uncharged acts which were clearly accepted by the jury, you fall to be sentenced to be only on the charged incidents.

50The authorities make it clear, that on a retrial, except in extreme circumstances, the sentence imposed should not exceed that previously down.  Overall, your position now is that you face conviction for one more charge of indecent assault that you had previously.  In my view, the fact that there is a further charge does give rise to circumstances where I should increase the sentence imposed by His Honour Judge Howard, but it will be a minor increase.

51You have shown no remorse.  Your daughters have given evidence and have been cross-examined both at committal and trial and whilst use of recorded material from the first trial did not necessitate them once again enduring the ordeal of recounting evidence in chief and being cross-examined.  The added stress they experienced on the retrial was clearly referred to in each of the victim impact statements.

52I accept that some regard must be had to the issues of your age and declining health and the myriad of medical issues affecting you, although they do not in my view, amount to such debilitation that your service of a sentence of imprisonment would be so materially more difficult than that of an ordinary prisoner, that that limb of Verdins in this regard should be applied in your case.

53I received a number of references from friends who continue to support you.  It is perfectly clear that in your professional life and in your social life, you have a highly regarded and have lived the life of a contributing citizen.  However, in sexual offending, particularly in intra-familial offending, the perpetrator very often falls into that category.  It is quite clear from the authorities that evidence of good character has much lesser weight in circumstances such as these.

54At the end of the day, the court is left to sentence a man who has systematically and ruthlessly sexual exploited his daughters in the gravest and most degrading fashion, almost as a matter of right, without regard to the violation that involved, the gross breach of trust that this entailed and what really amounted to a sexual ravaging of the children you bore, who were entitled to your protection and love and who in the process have had incalculable damage wreaked upon them.

55Any of the considerable material benefits that are received at your hands, the privileged schooling, the expensive holidays and the like are rendered worthless in my view, in the face of the sexual abuse you inflicted upon them over a period of about a decade and which began when each of them was a very little girl.

56In my view, the sentence imposed by His Honour Judge Howard was an appropriate one in the circumstances, except for the extra charge and I reimpose the sentences that in a singular sense were then imposed, although some adjustments must be made as a result of the differences between the two charges.

57I therefore sentence you as follows, could you stand up please sir?

58Charge 1, you are sentenced to nine months' imprisonment. 

59On Charge 2, you are sentenced to 12 month's imprisonment. 

60On Charge 3, you are sentenced to three years' imprisonment. 

61On Charge 4, you are sentenced to 18 months' imprisonment. 

62On Charge 5, you are sentenced to three years' imprisonment. 

63On Charge 6, you are sentenced to three years' imprisonment. 

64On Charge 7, you are sentenced to nine months' imprisonment. 

65On Charge 8, you are sentenced to 12 months' imprisonment. 

66On Charge 9, you are sentenced to nine months' imprisonment. 

67On Charges 10, 11, 12, 13, 15, 16,17 and 18, you are sentenced to three years' imprisonment and on Charge 14, you are sentenced to 18 months' imprisonment.

68The base sentence will be the sentence imposed on Charge 3, three years' imprisonment.  You fall to be sentenced as a serious sexual offender in relation to Charges 3 and following.  I declare that you are a serious sexual offender.

69I order that eight months' of each of the sentences imposed on Charges 5, 6, 10, 11, 12, 13, 15, 16, 17 and 18 be served cumulatively to the sentence imposed on Charge 3 and to each other.

70I note, and for the sake of completeness, I will undertake the same exercise Judge Howard expressed it in terms of on each of those charges, two years and four months of the three year sentence imposed in relation to each of the charges was to be served concurrently.

71In relation to the remaining charges, Charges 4, 8 and 14, four months of the sentence imposed on each of those charges, will be served cumulatively.  To the sentence imposed on Charge 3 and all other sentences imposed, two months of the sentence imposed on Charges 1 and 7 will be served cumulatively to the sentence imposed on Charge 3 and all other sentences and three months of the sentences on Charge 2 is to be served cumulatively to the sentence imposed on Charge 3 and all other sentences.  This gives a total effective sentence of 11 years and three months and I order that you serve a minimum term of eight years and three months.

72What is the pre-sentence detention please?

73PROSECUTOR:  It is 1305 days Your Honour.

74HER HONOUR:  I declare that 1305 days of the sentence have already been served by way of pre-sentence detention.  Is there anything else that I need to attend to?

75MS ALTMAN:  Your Honour went so quickly with the numbers, I was not able to - - -

76HER HONOUR:  Yes.  I am a shocker, I am sorry.

77MS ALTMAN:  ‑ ‑ ‑ to add anything up.

78HER HONOUR:  Okay, we will do it again.

79MS ALTMAN:  Does Your Honour have a written version of the sentences?

80HER HONOUR:  I will go through it again and I will go through it slowly.

81MS ALTMAN:  Thank you.

82HER HONOUR:  Charge 1, nine months.  Charge 2, 12 months.  Charge 3, three years.  Charge 4, 18 months.  Charges 5, 6, 10, 11, 12, 13, 15, 16, 17 and 18, three years.  Charge 7, nine months.  Charge 8, 12 months.  Charge 9, nine months and Charge 14, 18 months.  Base charge is Charge 3, three years.  Eight months of each of the charges imposed on 5, 6, 10, 11, 12, 13, 15, 16, 17 and 18, to be served cumulatively upon Charge 3 and to each other.  That gives nine years and eight months.  Then I have ordered that four months of the sentences imposed on Charges 4, 8 and 14 be served cumulatively to Charge 3 and with each other.  That makes ten years and eight months.  And then I have ordered that two months of the charges imposed on 1 and 7 be served cumulatively to Charge 3 and to each other which gives 11 years and that three months of the sentence imposed on Charge 2 be served cumulatively to Charge 3 and with each other and that gives a total effective sentence of 11 years and three months.

83MS ALTMAN:  I do not have a, and this may be deliberate, but the only order that seems to be missing is any sort of cumulation on Charge 9.  I am just checking that there is no cumulation order on the sentence imposed on Charge 9.  Not that I want Your Honour to.

84HER HONOUR:  You are absolutely right.  I thought I had done such a brilliant job.  It is my intention that there be only a three month cumulation.  You are right.  I have not done a cumulation on that.  All right then, what I might do is, I will do a two month cumulation on Charge 2 and a one month cumulation on Charge 9.

85MS ALTMAN:  Which still produces - - -

86HER HONOUR:  Eleven years and three months.

87MS ALTMAN:  ‑ ‑ ‑ Three months

88HER HONOUR:  Thank you.

89MS OTTEN:  Thank you Your Honour.

90HER HONOUR:  Thanks Ms Otten.

91MS OTTEN:  I understand there was an application made for an order for forensic sample at the plea hearing.

92HER HONOUR:  Yes.  Can you stand up Mr Huges?  An application has been made to take a DNA sample from you which will be done by way of a saliva swab.  I need to inform you that if you resist this being taken, police are entitled to use reasonable force in order to obtain it.  Thank you.  Have a seat please.

93OFFENDER:  Thanks Your Honour.

94HER HONOUR:  Are there any other matters that I need to attend to?

95MS OTTEN:  No Your Honour.

96HER HONOUR:  Yes, you will be placed on the Sex Offenders Register for life.  The conditions of which will be explained to you by your instructor.  Yes, thank you.  We will stand down to 10.30.

- - -