Director of Public Prosecutions v Hunt (a pseudonym)
[2023] VCC 1033
•16 June 2023
| IN THE COUNTY COURT OF VICTORIA AT HORSHAM CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00608
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TREVOR HUNT (A pseudonym) |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Horsham | |
DATE OF HEARING: | 14 February 2023 | |
DATE OF SENTENCE: | 16 June 2023 | |
CASE MAY BE CITED AS: | DPP v Hunt (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1033 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence
Catchwords: Sexual offending – sexual penetration of a child under 16 – incest – young offender – family violence – substance abuse – low intellectual functioning – plea of guilty
Legislation Cited: Criminal Procedure Act2009
Cases Cited:Bugmy v The Queen [2013] HCA 27; Bergman (a pseudonym) v The Queen [2021] VSCA 148; 289 A Crim R 503; R v Boland (2007) 17 VR 300; Rootsey v The Queen [2018] VSCA 108; CNK v The Queen (2011) 32 VR 641; Webster (A Pseudonym) v The Queen (2016) 258 A Crim R 301
Sentence: Community Correction Order for a period of 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Casey Mr D. O'Doherty | Office of Public Prosecutions |
| For the Accused | Mr A. Hands | Adrian Paull Criminal Lawyers |
HER HONOUR:
1Trevor Hunt[1] on 14 February 2023 you sought a sentence indication on one rolled-up charge of sexual penetration of a child under 16. Pursuant to s207(1)(a) of the Criminal Procedure Act2009,[2] I indicated that if you were to plead guilty, I would impose a Community Correction Order. On the basis of this indication your matter resolved and on 15 February 2023 you were arraigned on indictment M11854730.2. You pleaded guilty to the one charge that was the subject of the sentence indication.
[1] A pseudonym.
[2] Criminal Procedure Act (Vic) 2009 s207(1)(a).
Circumstances of offending
2The circumstances of your offending were set out in the prosecution opening. This document was tendered on your plea. In short, your offending occurred between 14 June and 14 December 2011. The victim was your half-sister Brooke Townsend,[3] who was then aged between 7 and 8 years.
[3] A pseudonym.
3In 2011, the victim lived at the family home with you, your mother, step-father and step-brother. You were 14 years of age and the eldest of the three children. The victim attended a local primary school. Your mother and step father would regularly travel to a nearby local town to play bingo on Friday and Saturday nights. They often consumed considerable amounts of alcohol and you and your siblings were witness to, and victims of, domestic violence. At times you were left home alone in charge of the younger children.
4The first incident occurred on a date sometime between 14 June and 14 December 2011. You were home with the victim and your mother and step father had gone out. You took the victim into your bedroom. You rubbed the victim’s vagina with your fingers and then put your fingers inside her vagina and pushed them in and out.
5The second incident occurred in the same time frame, again at a time when your mother and step father were absent from the home. On this occasion you took the victim into her bedroom. You left your younger step-brother in the lounge room watching television. Whilst in the victim’s bedroom you demanded she remove her underpants and said something like ‘take it off or I’ll murder you or something worse’. The victim was terrified by your threat. There is no charge in relation to this threat and as such you are not to be sentenced for this. The information is provided as context for your offending.
6You then made the victim lay on her stomach face down on her bed you laid on top of her and inserted your penis into her anus. You moved your penis in and out of the victim’s anus for an unknown length of time which caused the victim ‘full on’ pain. You then removed your penis from the victim’s anus and laid back on her bed. Shortly after this you forced the victim to masturbate your penis until you ejaculated, which you wiped up. Also, during this incident you touched your victim on various areas of her body. There are no charges for the touching and the masturbation and as such you are not to be sentenced for this. As before this information is provided as context for your offending.
7In late 2011 your victim told her half-brother, Fred[4] and her half-sister Amy[5] about what had occurred. As a result your mother, Helen Gray[6] was informed but no action was taken.
[4] A pseudonym.
[5] A pseudonym.
[6] A pseudonym.
8In early 2019 your victim came into the care of her godmother, Rebecca Turner.[7] In April 2019 she disclosed your offending to Ms Turner and the matter was reported to both DHHS and the police.
[7] A pseudonym.
9On 22 April 2019 the victim made a VARE statement. On 17 November 2021 the victim made a second statement. You were interviewed on 2 December 2019.
Victim Impact Statement
10A victim impact statement was received from Brooke Townsend and read to the court by the prosecutor at plea, Mr Casey. The impact of your offending has caused Brooke to be confused, scared and terrified. Brooke said your offending impacted her school work, her ability to make friends or to trust anyone. As a result, Brooke struggles with intimate relationships and has lost family connections. As Brooke put it 'I thought we were supposed to be family, you are my big brother and you were supposed to protect me and you also just used me'.
Personal circumstances
11You are currently 26 years of age, and as I have said you were only 14 years old at the time of this offending.
12You were born in the Wimmera region and lived there, in two towns in this region. Your mother separated from your biological father when you were only two years old. You have some contact with your father now but during your younger years he was never around. Consequently, your relationship is not close.
13During your childhood you lived with your mother and step-father. You have one brother who is now 23 years old and your mother had three more children including your victim, Brooke who was fathered by Frank Townsend.[8] You and your step siblings were raised by your mother and stepfather. Unfortunately, your mother had a significant problem with alcohol and would often drink to excess. Alcohol exacerbated her aggression and she would be violent towards your stepfather, at times she was physically abusive towards you and your siblings also. The level of violence was sometimes extreme such as the time you were 13 years old and your mother stabbed your stepfather. There were times where you took on the role of protector of your siblings. DHHS were often involved with your family.
[8] A pseudonym.
14At age 16, you left home and moved in with a different relative which was a positive change. Despite all that has occurred in your past, I understand you continue to have a reasonably good relationship with your mother and stepfather, however your contact with them is not frequent.
15You attended primary and secondary school in the Wimmera region until you left a month into Year 11. You did not have the benefit of an integration aide and have reported that your reading and writing skills are good. You were described as having significant difficulties with concentration and behavioural problems. Not surprisingly, in light of your home life, you were a naughty kid who was often involved in physical fights at school.
16After leaving school you worked as a painter and decorator on and off for 12 months and then became unemployed. Currently, you are in receipt of Job Seeker payments and you regularly apply for jobs online.
17At the age 15 you commenced drinking alcohol although have never considered this to be a problem. At age 20 you commenced using methylamphetamine having been introduced to this drug by a friend. You used ice daily from age 20 to 23 by smoking approximately a gram per day. In addition, you would occasionally use cocaine, amphetamine and MDMA. You reported not having used any substances since age 23. A recent update from Sharon Richardson at Corrections detailed that you had completed a drug treatment assessment on 22 August 2022 and were recommended for a course of care and recovery. You completed this course attending 10 appointments.
18You have had at least two significant relationships. At age 19, you began a relationship with a woman with whom you had a child born in 2017. This relationship lasted approximately 18-months and ended due to your subsequent offending which I will mention shortly.
19In 2022 at age 23, you moved to Horsham and around the same time began a relationship with another woman with whom you had a son, Justin.[9] Family violence occurred in this relationship and there was eventually child protection involvement which led to you losing contact with your son. I was told in January 2023 you were charged with offending against your ex-partner and on 1 June 2023 you were sentenced to 10 days' imprisonment. Further, very recently you were charged with contacting your ex-partner in breach of a family violence intervention order. You were sentenced to one month imprisonment with 3 days reckoned as served by way of pre-sentence detention on 9 June 2023. Of concern this related to offending, albeit non-contact offending, that occurred on 4 and 6 June 2023 after you had been released from custody. You are expected to be released within the next few weeks.
[9] A pseudonym.
20You also have subsequent offending for charges of a similar nature. In 2015, you were placed on probation without conviction for a charge of sexual penetration of a child under 16. In 2017, you were placed on a Community Correction Order in relation to four charges of committing an indecent act with a child under 16 and two charges of assault with intent to commit a sexual offence. You have been placed on the Sex Offenders Register for life and in 2019 and 2022 you were convicted and fined for failing to comply with your reporting obligations. Further, in 2022 you were also found to have knowingly possessed child abuse material.
Psychological report Gina Cidoni
21A psychological report authored by Gina Cidoni dated 19 January 2023 was tendered on the sentence indication hearing and later at your plea. Ms Cidoni made the following findings:
(a) You present with borderline to extremely low intellectual functioning.
(b) The implications impact your critical thinking skills and inhibition. Cognitive flexibility is a major challenge for you as is your judgment. You consistently fail to weigh the pros and cons of decision made.
(c) Although limited reliance can be placed on personality testing undertaken, clinical evaluation points to the following diagnoses; schizoid and avoidant personality style, persistent depressive disorder, other specified trauma and stressor related disorder and stimulant use disorder (in sustained remission).
(d) You have a pattern of detachment from social relationships and a restricted range of emotional expression in interpersonal contexts. Your avoidant traits are likely to stem from fears of negative appraisals and rejection likely due to low self-esteem and a view that you are inferior to others.
(e) Your childhood was categorised by violence and trauma. The abuse experienced would have contributed to your reduced self-esteem and the idea that you were not valued. This has never been addressed and has likely continued to the present.
(f) PTSD has likely emerged from your exposure to family violence in childhood. You experience flashbacks, nightmares, extreme fear, accompanied by physical symptoms such as shakiness and difficulty falling asleep. Untreated this has led to increased reactivity and difficulty regulating emotions.
(g) You also demonstrated symptoms of persistent depressive disorder. Although you have remained involved in everyday life you have become preoccupied with feelings of discouragement or guilt, a lack of initiative, social withdrawal, chronic fatigue, poor concentration and a marked loss of interest in pleasurable activities. This has contributed to decreased effectiveness in performing routine life tasks.
(h) Your cognitive and mental health conditions led to poor coping strategies and you turned to drug use to numb negative emotions. Further evidence of your self-destructive behaviour was an attempt at suicide when you were not able to see your son.
(i) Your subsequent sexual offending in 2015 and 2017 and your failure to comply with SORA highlights a pattern of maladjustment. You are considered to be a moderate to high risk of sexual recidivism. Your risk of reoffending could be reduced to moderate with appropriate treatment.
(j) Ms Cidoni recommends you have psychotherapy and you engage in a sex offender treatment program pitched at your cognitive level. The aims should be to help you to understand yourself and your offending behaviour, designed to help you identify and decrease deviant sexual arousal, victim impact and empathy, mood management, relationship skills and relapse prevention. You need help to deal with your own trauma and negative experiences and thinking patterns.
22I accept the opinions of Ms Cidoni and I also accept the submission of your counsel that the principles enunciated in the case of Bugmy are enlivened in your case.[10] You experienced and witnessed appalling and psychologically damaging harm at the hands of your mother and stepfather, the very people who should have loved, protected and nurtured you. This violence and childhood abuse has impacted upon you in the ways described by Ms Cidoni. In my view your moral culpability for the offending cannot be equated with that of a person who committed the same offences who has had the advantage of a normal stable home environment in which he had been guided by appropriate parenting.[11] The destabilising effect of your exposure to domestic violence in your formative years together with the fact that you were a child at the time of your offending reduces your moral culpability. Additionally, it helps to put in context your history of subsequent offending.
[10] Bugmy v The Queen [2013] HCA 27.
[11] Bergman (a pseudonym) v The Queen [2021] VSCA 148; 289 A Crim R 503.
23Further, I have taken into account your limited cognitive functioning in assessing your moral culpability and the application that general deterrence should have in your case. It is my view that for the combination of reasons I have just referred to general deterrence should be moderated in your case.
24Other mitigating factors I have taken into account include your plea of guilty. Although it was not an early plea and occurred after the cross-examination of your victim it is one that has utilitarian value. By your plea, you have avoided what would have been a lengthy and emotional trial. Importantly, you have accepted responsibility for your offending. Additionally, I take into account that your plea has come at a time when the courts are still choked by the backlogs brought about by the COVID-19 pandemic. In all of the circumstances I have given you a significant discount for your plea of guilty.
25I also take into account the delay that has occurred in your case. Generally, delay can be taken into account by the court in two ways, that is in relation to considerations of fairness and also in relation to considerations of rehabilitation. It cannot be said that you have gone on to rehabilitate and have not re-offended. However, I do accept that this matter has been hanging over your head since your record of interview in December 2019 and has remained unresolved for the last 3 to 4 years. No doubt this has caused you stress and anxiety as to your future.
26A further aspect of delay is the fact that you committed the offending when you were a child which I will discuss shortly. That brings me to the nature and gravity of your offending.
Nature and gravity of offending
27Mr Hunt, any sexual offending against a child is abhorrent, evil and depraved. Your victim was only 7 to 8 years of age when you offended against her. In these circumstances the maximum penalty for your offending is 25 years' imprisonment. This shows you just how seriously parliament and the community view offending of this nature.
28Your offending occurred two times, with you threatening your victim the second time it happened. Your victim was your stepsister, she was very young and she had been left in your care at the family home. You were trusted to look after her, and as she said you were supposed to protect her. Your offending is a serious breach of this trust and is aggravated by the fact that it occurred within the family home, a place where she should have been safe and protected.
29These factors must be balanced with the fact that at the time of your offending you were only a child yourself, being 14. Further, your offending occurred in the context of a dysfunctional, alcoholic and violent home where you and your siblings were often abused and neglected.
30I have had regard to the decisions referred to by the prosecutor, Mr Casey. I must say his plea submissions were very thorough and helpful and if that could be passed onto him, I would be grateful.
31MR O'DOHERTY: Thank you, Your Honour. I will.
32HER HONOUR: The proper approach for sentencing in cases such as yours has been discussed by the Court of Appeal on many occasions. In the case of Boland, the Court said:[12]
Decisions of this court in R v Nutter and R v Better recognise that where offences which have been committed while an offender is a child or immature and are not prosecuted until many years after the event, there is good reason to mitigate penalty, or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending. Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the offender’s moral culpability, take into account that what was done was done as a child, or as a person of immature years, and not as an adult or a person of greater maturity. Counsel for the appellant is also correct that general deterrence ordinarily has a lesser role to play in the sentencing of children and immature young people than in the case of mature adults, and that it is significant that the appellant has not re-offended in more than 24 years.
[12] R v Boland (2007) 17 VR 300.
33Further, in the case of Rootsey v The Queen, the Court of Appeal said:[13]
In this State, because of the operative legislative regime, general deterrence is excluded from consideration in the sentencing of children.[14] General deterrence continues to have relevance, however, to the sentencing of adults for offences committed as children, albeit that ‘common sense and fairness’ dictate that any assessment of the nature and gravity of the crime, and of the offender’s moral culpability, must take into account that what was done was done as a child, and not as an adult or a person of greater maturity. Thus, the sentencing judge was correct, in our view, to ‘reduce the influence which the concept of general deterrence should be accorded’, without altogether excluding it as a sentencing factor.
[13] Rootsey v The Queen [2018] VSCA 108.
[14] CNK v The Queen (2011) 32 VR 641; Webster (A Pseudonym) v The Queen (2016) 258 A Crim R 301.
Sentencing principles
34The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.
35I denounce your offending in the strongest possible terms. Given the circumstances of your particular case, as I have said, I consider that general deterrence is still applicable but that it should be moderated. Given your subsequent offending and ongoing issues, some weight must be given to specific deterrence. In your case, I regard protection of the community to be a relevant consideration, particularly as Ms Cidoni assessed you as a moderate to high risk of sexual recidivism. At this stage, where your intellectual disability has been recently diagnosed, it is my view that community protection can best be achieved through supports and programs tailored to address your untreated mental health problems and intellectual deficits. It is my view that this will likely reduce the risk of future offending.
36I take into account the sentencing guidelines referred to in s5 of the Sentencing Act, where relevant to your case. Ultimately 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 very important considerations here. They require me to do more than is necessary to appropriate punish you for your offending in the particular circumstances of your case.
37Weighing up all relevant matters including the submissions of the parties, the psychological report from Ms Cidoni, the pre-sentence reports and the victim impact statement I consider the most appropriate penalty is a Community Correction Order. You have been assessed as suitable for such an order. Additionally, you have also been assessed as suitable for a Justice Plan given your eligibility for disability services.
38So, Mr Hunt, for the charge of sexual penetration of a child under 16 you are convicted and I order that you be placed on a Community Correction Order for a period of 2 years. The conditions of this Community Correction Order include that;
(a) You participate in the Justice Plan;
(b) You attend for supervision;
(c) And that you attend the court when directed for Judicial Monitoring. The date you will be required to attend court for this purpose is 22 August 2023 at 9.30 am.
39The Justice Plan has supports and treatments for you, in particular you will be referred to Forensic Disability Clinical Services. It is really important that you participate in any programs they want you to do.
40HER HONOUR: All right. In addition, to the conditions that I have imposed, there are standard conditions that you must comply with. The first and foremost of these is that you are not to commit another offence punishable by imprisonment for the period of the Order, which is 2 years. You need to report within two working days of your release from custody to your nearest Corrections office, which I understand will be Horsham CCS.
41You are required to advise your supervising Corrections Office of any change of address where you are living or working within two clear working days. It is a term of all Community Correction Orders that you must submit to visits as directed and obey the instructions and directions of the Corrections officer and you cannot leave the State of Victoria without prior permission.
42So, Mr Hunt, if you reoffend you will breach the Correction Order, if you do not comply with the conditions you will breach the Correction Order, and if you do that you will come back before me and you may be very likely resentenced in relation to the original charge.
43I can only place you on a Correction Order if you agree. So, firstly, do you understand what is involved in such an Order?
44All right. Do you agree to do such an order? Do you consent?
45OFFENDER: Yes, Your Honour.
46HER HONOUR: All right. We will have that drawn up. I will take your verbal consent given the situation that you are in at present. It will be difficult for us to get you to sign that so your verbal consent will be taken as an agreement to do the order and it is very likely that when you attend at Corrections, they will have it there for you to sign, all right?
47Pursuant to s6AAA had you not pleaded guilty and been found guilty after trial I would have imposed a sentence of 2 years' imprisonment with a non-parole period of 12 months.
48MR O'DOHERTY: I do not think there is anything else, Your Honour.
49HER HONOUR: No. SORA I think would be - - -
50MR O'DOHERTY: He is already on that.
51HER HONOUR: Yes, he is and it is discretionary I think because he's 14.
52MR O'DOHERTY: Yes.
53HER HONOUR: So given that he is already on SORA for life, it becomes moot.
54MR O'DOHERTY: Yes, sure. Yes.
55HER HONOUR: All right. Mr Hands, anything further from you?
56MR HANDS: No. Thank you.
57HER HONOUR: All right. Trevor, I will see you on 22 August. I really want you to work hard on this Order. You have got the capability to do it because I have seen the report from Sharon Richardson. You have worked in quite well with her in the past. I do not know whether you have actually done any treatment though with all the things that you have had but I really want you to commit to that and get things sorted out. All right?
58Or try as best you can. Next best thing. All right?
59All right. All right. Thank you everyone. We will adjourn the court.
60MR HANDS: Thank you, Your Honour.
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