Director of Public Prosecutions v Hunt (a pseudonym)
[2023] VCC 1803
•5 October 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES HUNT (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE WILMOTH |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 October 2023 |
DATE OF SENTENCE: | 5 October 2023 |
CASE MAY BE CITED AS: | DPP v Hunt (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1803 |
REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Pleas of guilty to 6 charges of committing indecent act with a child under 16 – two complainants – duration over 6 years – offending began when each child was 9 – accused aged 39 -44 – effect on complainants – complaints made in 2017 – mitigating factors – remorse – demonstrated rehabilitation.
Sentence: 21 months imprisonment, of which 12 months are suspended for two years. ---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C Duckett (plea) Ms C. Paganis (sentence) | Office of Public Prosecutions |
For the Accused | Mr L. Richter Angus Cameron | Angus Cameron |
HER HONOUR:
1James Hunt[1], you have pleaded guilty to six charges of committing an indecent act with a child under the age of 16.
[1] A pseudonym.
Background to the offending
2The charges involve two complainants: sister Riley[2] and Melissa Smethurst[3], aged between nine and 12 years, born in 1994 and 1997 respectively.
[2] A pseudonym.
[3] A pseudonym.
3At the time of the offending the complainants lived with their mother, Lara Smethurst[4], and their elder brother. Their father had become ill in 1993 and he died in 1999.
[4] A pseudonym.
4You were a close family friend with his family and the complainant's family spending a lot of time together, including holidays and outings and times at each other's houses.
5In 2000 or 2001 Mrs Smethurst began working at an Australia Post outlet which was owned by your father, Richard Hunt[5].
[5] A pseudonym.
6At the end of 2001 your marriage to your first wife ended. For some time after that you and your two sons spent every weekend with the complainants, their brother, and their mother. The complainants were very comfortable with you and called you Uncle James. The families went shopping together and to movies and on holidays in Australia and overseas. You frequently bought presents for the complainants and their brother would complain that you spent more on them than on him.
7On an occasion in early November 2003 when Melissa was six years old, she and her family travelled to Albury with you and your sons, where they stayed for three or four days in a resort while you took part in a badminton competition.
8Melissa was in a spa when you placed your hand over her swimwear and rubbed her vaginal area. You then put your fingers under her swimsuit and rubbed her clitoris and labia with the tips of your fingers. Melissa felt awkward and slightly embarrassed but did not say anything to anyone. This is the first incident that Melissa can recall occurring and it is not the subject of any charge.
The first incident
9The first incident which is the subject of a charge occurred between 1 January 2005 and 28 September 2006, when Melissa was about nine. She was in the outdoor spa at your house, sitting in front of you between your legs. You reached forward and rubbed her vagina and clitoris with your hands through her swimwear. You did this for quite a long time until somebody came out to the spa. (Charge 1.)
The second incident
10The second incident was between 29 September 2005 and 28 September 2007, before Melissa had turned 10. She was at your home and wanted to have a shower. You told her you would help her to shower, and you got into the shower with her naked. You washed her upper body with a bar of soap, then her outer legs, then her inner thighs. You placed the soap directly onto her vagina and rubbed the soap on it.
11After a while you took hold of her wrist and placed her hand on your erect penis, telling her to rub her hand up and down your penis, and you showed her what to do. She rubbed your penis for a while. (Charge 2.)
12On that same day she was alone with you in your bedroom. You told her 'I'll give you a massage'. When you left the room, Melissa took off her clothes and wrapped a towel around her body and she lay down on the bed. You returned to the bedroom and took the towel off her back and placed it over her buttocks. You put oil on her back and then rubbed it over her arms and legs. You moved your hands up her legs until you were rubbing the outside of her vagina, on her clitoral area, using the tops of your fingers. (Charge 3.)
The third incident
13The third incident occurred between 1 January 2007 and 31 December 2008, when Melissa was about 10 or 11. She and her family, with you and your sons, went to the Coburg Drive-In cinema. The families went in two separate cars. The back seat of your car could fold forward, allowing room to lie down in the back of the car.
14At the drive-in you backed your car into place, and you and your two sons and Melissa lay in the back with blankets and pillows, with the rear door open to allow you to see the screen. During the movie, your sons went to buy food. When they left, you moved one of your hands between Melissa’s legs and rubbed her on the outside of her vagina, through her clothes. (Charge 4.)
15You kept on doing this until your sons returned to the car, and each time they left again, or were distracted in some way, you did it again.
The fourth incident
16The fourth incident which concerns Riley, was on an occasion between 1 January and 31 December 2005, when she was nine or 10 years old.
17You brought a movie to the house for the family to watch together. While watching the movie Riley was seated on an L-shaped couch in the loungeroom next to you. The lights were off, with the only light coming from the television. During the movie you asked Riley to get a doona off her bed; she did so and then lay on the couch facing the TV, with you lying behind her, both of you covered by the doona.
18You placed your hands down her underwear putting your right hand into the front of her underwear, touching her vagina and moving your fingers in a circular motion around her clitoral area. Riley froze and stayed silent and did not move. You kept doing this for some time and then unzipped your jeans. You took hold of Riley’s right hand and placed it on the outside of your underwear. She could feel your erect penis. You rubbed her hand up and down your penis. (Charge 5.)
19Riley closed her eyes and pretended to be asleep. She moved her hand away and placed it back in front of her. Shortly after the movie ended she left the room and went to the toilet, then she returned to the room, picked up her doona and went to bed.
20Between 2004 and 2007 this occurred regularly, with you touching her clitoral area while lying on the couch with her watching movies.
The fifth incident
21Between 1 January and 31 December 2006, when Riley was 11 turning 12, she and her family visited you and your children at your home.
22She was in the spa with you and some others, wearing a bikini, sitting on your right‑hand side. When the jets of the spa were on, you placed your hand down the front of her bikini bottom. You touched her vagina and rubbed your fingers on and around her clitoral area. (Charge 6.)
23Riley froze because there were others in the spa. You stopped touching her when the bubbles of the spa stopped.
Complaints
24During 2008 when Melissa was about 10 years old, she worried about you and what you had done and told her friend, who said to her that if she did not tell her mother, she, the friend, would tell her. Melissa begged her not to and so she did not. Instead, Melissa kept away from you as much as possible.
25In 2012 when she was 15, she told her best friend that you had sexually assaulted her without going into details.
26In 2013 when she was 16, she told her boyfriend about it, again without any details.
27At the start of 2018 she told her mother, but with no explicit detail.
28In March 2018 she told Riley that you had molested her by touching her vagina, and Riley told her that she was going to make a statement, as you had offended against her too.
29Melissa made her statement in May 2018, Melissa in October. Both made second statements in November 2018 and April 2019 respectively. Melissa made a third statement on 6 June 2021.
30You were interviewed by the police on 30 August 2019, making no comment.
31You pleaded guilty at the committal hearing on 25 October 2021 and the plea hearing was listed for 22 May 2022.
32Various difficulties had arisen in the meantime including problems with your representation and funding. At some point you changed your plea, following which the trial was listed for 21 August 2023.
33The case came before me on 15 August 2023 as a sentence indication application.
The sentence indication hearing
34I heard detailed submissions from Mr Richter as to appropriate sentencing and a response from Ms Duckett for the prosecution. I indicated that I would impose a sentence of 12 months' imprisonment on each charge, with one order for cumulation of nine months in recognition of there being two complainants. This would result in a total effective sentence of 21 months.
35I said I would order that 12 months of the sentence be suspended, so that you would serve nine months' imprisonment. You accepted that indication and you were immediately arraigned, pleading guilty. The matter was then adjourned until 2 October for plea and sentence.
Gravity of the offending
36Before dealing with your personal circumstances and matters in mitigation, I shall turn to an analysis of the gravity of the offending. The duration of the offending between 2004 and 2009 was extensive and two young complainants were abused by you. You were a trusted friend of their family and you betrayed that trust, even though you were not in the type of trust relationship as teachers or carers often are.
37Their father had died not long before this and you knew full well that their mother was bringing up three children alone. The children were inherently vulnerable but more so because of their circumstances.
38These are serious offences, as all offending against children is. Your offending should be classified as being of mid-range seriousness, rather than representative of the more serious examples of this type of offending.
39Although you took advantage of being able to be close to the children as those opportunities presented themselves, there is no evidence that you planned this. Neither did you threaten the children to remain silent or use coercion, violence or inducements, as often occurs in these cases.
Victim impact statement
40Each complainant provided a victim impact statement and read her statement aloud in court. Melissa Smethurst, now Melissa Rogers[6], stated that because of your abuse of her she suffered depression since the age of nine and sought continuing professional help from age 21, at great financial cost. She lives interstate and feels uncomfortable even visiting Victoria.
[6] A pseudonym.
41She left school at 15, having already resorted to drug and alcohol abuse and it was not until many years later that she was able to pursue the education she had missed. Her relationship with her mother was damaged and has never recovered. She fears that bringing up her own children in the future will be burdened by the trauma she has experienced.
42Riley Smethurst states that she was robbed of her childhood and that she struggles to put into words the effect your offending has had upon her. She has had counselling since the age of 12 and has found the mental impact has been huge; from having to make a statement, to preparing mentally for each day in court, only to be set back time after time. It has affected her relationships with people and her ability to trust. She said she will never forgive you and she will aspire to be a voice for those who struggle to find theirs.
The plea
43The plea material is essentially what was submitted to me during the sentence indication hearing on 15 August.
44You are aged 58 and you were married for a second time in 2019. You and your wife now have a newborn son. You left school at age 15 and began an apprenticeship at a radiator repair shop. After that, you became a postman and later you were the union representative at the south-eastern Melbourne area of the Telecommunication Union.
45In 1989 you were injured while delivering mail on a motorbike and you still suffer pain and degenerative arthritis from this injury.
46In the early 1990s you and your first wife went into partnership with your father, Richard, running a special residential service caring for people with serious mental health needs. You and your family lived on the site in order to be available round the clock. The business eventually failed which broke up your parents' marriage and caused you and your wife serious problems.
47In 1996 you took over the post office and ran it successfully for 13 years.
48In 2000 you were diagnosed with Crohn's disease and by 2008 you had to stop work at the post office due to illness, and you sold the business soon afterwards. At that time you were hospitalised several times but the condition is now stable.
49You and your first wife were married for about 20 years, finally separating in 2005 after a previous separation, with divorce following in 2006.
50When your wife left, she took your two sons without consultation or notice, and it took you several years of stressful litigation to be granted majority custody. You offered your ex-wife the house you had built by way of settlement, and you continued living with your father.
51The offending occurred at around the same time as this stressful period, when your serious health problems had not been fully diagnosed.
52Your second wife has remained in Australia until recently on a bridging visa, awaiting the conclusion of this matter, to determine whether her Temporary Partner visa application will proceed. Until now, your time was spent assisting with the care of the new baby and attending to your health issues, as well as caring for your father who is in fragile health. He requires frequent medical appointments, with which you have been assisting.
Mitigating factors
53Your plea of guilty days before the trial date was made at the latest possible time, but nonetheless you have saved the witnesses, in particular the complainants, from having to give evidence. This was also avoided at the committal, so they have never had to do so.
54That is of considerable importance and it is equally as important to have saved other aspects of what might have been two trials of some complexity. That is of value to the criminal justice system and warrants a meaningful discount on your sentence.
55The additional value to the system is by helping to reduce the backlog of trials caused by the pandemic, which is still being dealt with by the court.
56In the context of the matter having been first listed as a trial, it is generally accepted that a plea of guilty indicates that an offender has accepted responsibility for the offending, with what might be called implied remorse, and that augers well for their rehabilitation. I accept that to be your situation.
57In addition, you have written a letter to the court expressing your remorse, stating that you deeply regret the harm you have caused and the violation of trust. You say that you are determined to become a better person and have sought professional help to do so.
58You have no previous or subsequent convictions and have never been in trouble before. You are said to be a man of good character and I have been provided with several references to this effect. It is generally accepted that good character is of little weight as a mitigating factor in cases of sexual offending against children, but it is relevant as to rehabilitation.
59In 15 years since the last offending there has been no further offending, and that is some indication of reduced risk in the absence of any psychological testing or clinical assessment.
60I have already referred to your health but will add that the Crohn's disease from which you suffer affects your ability to sit or stand for other than brief periods and causes serious discomfort every day, with issues with gastrointestinal function. The motorbike accident has caused degenerative arthritis in your neck.
61After the hearing of the sentence indication application, you made preparations for your incarceration. Your wife and child have now gone to live in Thailand, which is your wife's home country, and your father has gone with them to be cared for there.
62Your son, born here, is an Australian citizen but if his mother is denied citizenship through the loss of your sponsorship, because of your imprisonment, he will not have the opportunity to benefit from growing up here. I can take into account the anguish you will experience in prison, knowing that that scenario is a real possibility. Your concern about your father's absence and your inability to see him in his last years, also add to the burden of imprisonment for you.
63As a person of previous good character and good record, these matters will add to your shame and humiliation and constitute some degree of punishment. Given your demonstrated rehabilitation, there is little role for specific deterrence. General deterrence is of primary importance because of the nature of the offending, with sexual offending against children regarded with abhorrence by the community, and that is why imprisonment is warranted.
The sentence
64Mr Hunt, I sentence you to 12 months' imprisonment for each charge. The sentence for Charge 1 is the base sentence for purposes of cumulation. I order that nine months of the sentence for Charge 4 be served in cumulation upon the base sentence, resulting in a total effective sentence of 21 months.
65I order that 12 months of the sentence be suspended for two years. Therefore, you will be required to serve nine months imprisonment.
66If you had pleaded not guilty to these charges, I would have sentenced you to three years and six months' imprisonment with a non-parole period of two years.
67You have spent three days in pre-sentence detention, and I shall cause that to be noted on the court record, to be reckoned as already served.
68You will be placed on the Sex Offenders Register for life, meaning that you must provide your details to police each year for the rest of your life. You will be given a form to sign in custody sometime today.
69Are there any other matters, first of all Ms Paganis? Is there anything I have omitted or neglected?
70MS PAGANIS: No, nothing further, Your Honour, thank you.
71HER HONOUR: Thank you. Mr Richter?
72MR RICHTER: I don't believe so, Your Honour.
73HER HONOUR: I will leave it for my associate to organise for the form to be sent to Mr Hunt in custody, Mr Richter.
74MR RICHTER: Yes.
75HER HONOUR: I will leave the Bench now, so you will have an opportunity to speak to Mr Hunt if you wish to. Thank you.
76MR RICHTER: I am grateful.
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