Director of Public Prosecutions v Hunter

[2015] VCC 875

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSEPH HUNTER (a pseudonym)

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF PLEA:	24 June 2015
DATE OF SENTENCE:	26 June 2015
CASE MAY BE CITED AS:	DPP v Hunter
MEDIUM NEUTRAL CITATION:	[2015] VCC 875

REASONS FOR SENTENCE
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Subject: Sentence – criminal law
Catchwords: Found guilty on 3 charges of  incest, 5 charges of committing an indecent act with a child under 16 over a period of  12 months; natural daughter; offending lower end of the mid-range of seriousness; use of food products; complainant lived with father and step mother; low risk of recidivism; denial of guilt;  no mental illness or drug and alcohol issues.

Legislation: Sentencing Act 1991
Sentence: 6 years 3 months minimum of 3 years non parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr  J. Jassar	OPP
For the Accused	Mr. S. Kenny	Stary Lawyers

HER HONOUR

1Joseph Hunter[1], you have been found guilty by a jury of three charges of incest and five charges of committing an indecent act with a child under the age of 16.  This child was your natural daughter Lauren, who was aged 13 at the time.  You have denied all the allegations.

[1] pseudonym

2Lauren[2] lived with you and your wife, her stepmother, in Sydney, before the family moved to Melbourne in late 2011, shortly before the offending began.  In Sydney, you began behaving inappropriately by sleeping naked in the same bed as Lauren, and asking her to undress too.  This behaviour was not the subject of any charge, and I mention it as being relevant to the background of the offending.

[2] pseudonym

3In Melbourne, during January 2012, the first incident occurred when you told her to go to her bedroom, where you then told her to remove your penis from your boxer shorts and then made her suck it.  That is Charge 1.  After that, you sucked her breasts and started feeling them, and that is Charge 2.  You stopped when you thought you heard a noise, and pulled up your pants and left the room.

4On another occasion, you put the liquor Kahlua in a shot glass, then put your penis in it and made her suck it.  That is Charge 3.  You then poured Kahlua onto her chest and breasts and sucked it off.  She said it really hurt and that she did not like it.  You said you would stop if she did not like it, but you continued.  That is Charge 4.

5On another occasion, you required Lauren to perform a striptease by lifting up her shirt and then taking off her bra and shirt while she was sitting on top of you.  You then sucked on her breasts, biting them and feeling them.  That is Charge 5.

6About a month later, you and Lauren were watching TV and you told her you wanted to try something.  She said she did not want to, but you told her it would be the last time she would have to do it.  You went to the kitchen and returned with Nutella and a teaspoon, and made her suck your penis with the Nutella on it.  You asked her how far into her mouth you could put it, and kept pushing it into her mouth, which made her feel sick and she was dry-retching.  That is Charge 6.

7Charge 7 occurred after you had put Nutella on your penis and got her to lick it off.  You then put it on her breasts and sucked them, again causing her to dry-retch.

8The last charge, Charge 8, occurred in the swimming pool, when you told Lauren to pull down the top of her swimming costume and swim around like that, and you told her that you owned her and her breasts.  You then squeezed and held her breasts.

9Lauren and a considerable number of her young friends had to give evidence and be cross-examined, which was clearly a difficult experience for them.  You deny the charges and so of course, there is no remorse or contrition.  You have been found guilty of an abhorrent crime, the sexual exploitation of your own daughter.  Such crimes deserve severe punishment to express the community's disgust and the court's stern disapproval and condemnation.  The maximum penalty for incest is 25 years, and for committing an indecent act on a child under 16, five years.

10Lauren, who is now 16, moved interstate to live with her natural mother, and she has provided a victim impact statement in which she describes her fear and shame at the time you did these things to her.  She was hurt by the fact that her own father did these things, and she had loved you, and saw you as her hero.  She still feels angry sometimes and suicidal, although she says she would not act on it.  She hopes one day to patch things up with her brother, and to trust you again.

11Her mother, with whom she now lives, also provided a victim impact statement which she read to the court.  She described the manner in which Lauren remains very troubled by her experience of the offences, and the breach of trust by her father, with frequent acting out of disturbed behaviour; panic attacks; and nightmares.  Apart from the anguish Lauren suffers, this behaviour also causes significant disruption in the household, which includes Lauren's ten-year-old half-sister, who has special needs.

12Those are very serious consequences of offending which I accept as being at the lower end of the mid-range of seriousness.  This was the submission of Mr Kenny, your counsel, and the learned prosecutor agreed with this.  Indeed, the prosecutor took no issue with any of Mr Kenny's submissions.  I agree with his submission that the classification of the offences falls within the stated range, because of the absence of any associated violence or threats of recrimination, and because the use of food products did not amount to depravity or extraordinarily unusual behaviour.  That is supported by the evidence which was that this practice was one used by you and your wife, although unbeknown to Lauren, and that the same practice was the topic of schoolyard conversations which did include her.

13The offending does not fall at the lowest end of the range of seriousness, because of Lauren's age, as a young teenager; the breach of the trust she placed in you as her father in the absence of her natural mother, who lived interstate; and the duration of the behaviour and its deleterious impact on her.

14Your background is unremarkable, except for the fact that your parents separated when you were aged about five.  You had no contact with your mother until you were an adult.  In renewing contact with her, you made the decision to move from New South Wales to Melbourne with your family, to be able to assist your mother, who was ill.  Unfortunately, she died at around the same time as your arrival.

15You and Lauren's mother had separated when she was a baby, but you had continued to be involved in her life, and had taken steps to continue seeing her, even when you lived a considerable distance away.  Eventually, it appears an order was made, placing Lauren with you, and she lived with you and your wife after that.  You and the family, consisting of your wife, Lauren and your six-year-old son, established your new home in Melbourne, and you worked long hours to provide for them, with your wife also working part-time.

16You had left school early and have always been employed, working at various jobs initially, and for many years now as a traffic controller.  The manager of the company which employed you until your incarceration has provided a letter stating that you were a trusted and reliable worker, and that these offences are completely out of character.

17As a man now aged 39, you have a very limited criminal history, with a prior conviction for false imprisonment having arisen when, as a 23-year-old at a party, you and others allowed an episode that was not intended to cause any harm to go too far, with a man being handcuffed and held against his will.

18You have been in custody since the trial for 32 days now, not including today.  During that time, you have had visits from your wife, but have been very upset by the prohibition by the authorities on visits from your son, something which remains unexplained.  You have the strong support of your wife and extended family, with the knowledge that you have a home to return to upon your release.  Your wife and other close family members have written to the court in support of you, and they all struggle to accept the truth of the jury verdict.

19You have been assessed recently by a psychologist, Mr Stephen Gault, whose opinion it is that you are at low risk of reoffending, even taking into account your denial of your guilt.  You satisfy very few of the indicators used to indicate high risk in cases such as this.  He considers you to have been an offender who was prepared to take an opportunity that presented itself, and indeed you have no indications of paedophilic or other deviant sexual tendencies.

20Your account to Mr Gault is that you are not a regular user of alcohol, and have never used illicit drugs.  You do not suffer from any mental illness, but Mr Gault considers you are at risk of developing a depressive illness, by way of reaction to your circumstances of imprisonment, with the added factor that you are being held in protection, following an incident of being stood over by another inmate.  Mr Gault suggested that being assigned work in prison, once you were sentenced, may assist you in dealing with these difficulties.

21I am satisfied that you have good prospects for rehabilitation.  You are finding imprisonment difficult, and the punishment it represents, together with the low risk of recidivism, indicates that the role of specific deterrence should be somewhat modified, in part, to allow for a considerable period of parole.  The need for general deterrence remains high, because of the serious nature of the offences, as I have already mentioned.

22Pursuant to s.6B of The Sentencing Act, in relation to Charges 3 to 8 inclusive, you are to be sentenced in accordance with s.6E of the Act, requiring sentences to be cumulative unless otherwise directed.  Your status as a serious sexual offender will be noted on the court record.  Would you stand now please, Mr Hunter.

23For each of Charges 1, 3 and 6, the charges of incest, three years' imprisonment.

24For each of Charges 2, 4, 5 and 8, the charges of committing an indecent act with a child under 16, nine months' imprisonment.

25For Charge 7, 12 months' imprisonment.  This is also a charge of committing and an indecent act, but of a more serious nature, in my view, than the other indecent behaviour.

26The sentence for Charge 1 will be the base sentence for purposes of cumulation.  I order that one year of each of the sentences for Charges 3 and 6, and three months of each of the sentences for the remaining charges, be served in cumulation upon the base sentence.  This results in a total effective sentence of six years and three months.  I order that you serve a minimum period of three years before being eligible for parole.

27As I said before, you have been in pre-sentence detention for 32 days by my reckoning, not including today, and I declare that time to be reckoned as already served.  I shall cause it to be noted on the court record.

28The prosecution seeks an order for a forensic sample of saliva to be obtained, and that is not opposed by you.  I make that order, and must advise that the police have the power to use reasonable force to obtain the sample, but I trust that won't be necessary.

29It is mandatory that you be placed on the Sex Offenders Registration under the legislation, and that will apply for the rest of your life once you are released.  Now, are there any other matters first, Mr Jassar?

30MR JASSAR:  No, Your Honour, those are the matters.

31HER HONOUR:  Mr Kenny?

32MR KENNY:  I don't believe so, Your Honour, no.  As the court pleases.

33HER HONOUR:  I note there are a number of members of Mr Hunter's family in court; is that right Mr Kenny?

34MR KENNY:  It is, Your Honour.

35HER HONOUR:  All right.  If any one of them wishes to briefly say farewell to him, I'll remain in court while that's done.

36MR KENNY:  If it please Your Honour.

37HER HONOUR:  Thank you, officer, you may take Mr Hunter now.  Would you adjourn the court, Mr Tipstaff.

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