Director of Public Prosecutions v Hunter and Pendlebury
[2023] VCC 1997
•31 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case Nos. CR-18-02562
and CR-18-02563
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW HUNTER and LAUREN PENDLEBURY |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 August 2023 and 8 September 2023 | |
DATE OF SENTENCE: | 31 October 2023 | |
CASE MAY BE CITED AS: | DPP v Hunter and Pendlebury | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1997 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: False imprisonment – Hunter plea of not guilty – Pendlebury plea of guilty parents’ false imprisonment of child as punishment – 4 year old child with cognitive difficulties – parental discipline – assault - general deterrence – mental health – very good prospects of rehabilitation.
Legislation Cited: ss 83AU, 6AAA Sentencing Act 1991 (Vic); Evidence Act 2008 (Vic).
Cases Cited:The Queen v Verdins (2007) 16 VR 269; Stafford v The Queen [2022] VSCA 229; Boulton v R (2014) 46 VR 308;
Sentence: Hunter – Community Correction Order of 22 months duration.
Pendlebury – Community Correction Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Piggott | Solicitor for the Office of Public Prosecutions |
| For the Accused (Hunter) | Mr C. Grant | Melinda Walker |
| For the Accused (Pendlebury) | Mr A. Dickenson | Stary Norton Halphen |
HIS HONOUR:
1Andrew Hunter, on 2 May 2023, a jury found you guilty of false imprisonment of Samuel Hunter, and an assault on Samuel Hunter. You were found not guilty of causing serious injury intentionally to Samuel Hunter and not guilty of the alternative offence of recklessly causing serious injury to Samuel Hunter.
2The false imprisonment occurred over four nights between 14 June 2018 and 21 June 2018, and the assault occurred between 17 June 2018 and 20 June 2018.
3Lauren Pendlebury, on 12 April 2023, you pleaded guilty to a single charge of falsely imprisoning Samuel Hunter between 16 June 2018 and 21 June 2018.
4There are two prosecution summaries for plea. The first is Exhibit P1 dated 15 August 2023 in relation to you Mr Hunter. The second is a document headed 'Final Amended Summary of Prosecution Opening for Plea Hearing' dated 7 September 2023, but amended again and filed on 30 October 2023. That is Exhibit P3. Those documents set out the circumstances of offending of each of you.
5The victim, Samuel Hunter (Samuel), was born on 4 February 2014. You, Andrew Hunter, are the biological father of Samuel, and you, Lauren Pendlebury, were, at the relevant time, the victim's stepmother.
6You have been together in a relationship since approximately 2016. Samuel had been in the care of his mother, Jane Hunter, until approximately October 2017, at which time he came to live with you.
7Also living in the house were your three children, Ms Pendlebury: Jack, born in 2005; Chloe, born in 2008; and Amelie, born in 2009. A child of you both, Caitlyn, born in late 2017, was also living there.
8Samuel attended at an early childhood and family care centre. On 21 June 2018, you, Mr Hunter, dropped Samuel off at the centre at approximately 9.15 am. You both went inside, and Samuel went and washed his hands before sitting down on a mat. Simone Taylor, a worker at the centre, said to you Mr Hunter 'The sun is out today, we might go outside to play. Does Samuel have a jumper in his bag?'. You said 'Yes, that'll be good because he'll need to warm his bones'.
9Ms Taylor asked what you meant by 'warm his bones', and you responded that Samuel was in the laundry last night. Ms Taylor asked 'What for?', to which you said 'Well, he was a naughty boy and that was his punishment'. Ms Taylor asked 'He didn't spend all night in there did he?', and you responded 'He was in there all night'. Ms Taylor then said 'I hope you gave him a blanket', to which you said 'No, no blanket, that's his punishment for being a naughty boy'. You further stated 'That's the punishment for all the children, that's the way she (a reference to Ms Pendlebury) wants it'.
10Ms Taylor could see Samuel sitting on the mat shivering. He was wearing a t-shirt and puffer vest. She bent down to touch Samuel's forearm and it felt cold. She then said to you Mr Hunter 'Yeah he does feel cold, we'll get his jumper out'.
11You, Mr Hunter, picked Samuel up and gave him a cuddle, before sitting him back down on the mat. Samuel said 'I love you daddy' and you then left.
12After you left, Ms Taylor, who had concerns for Samuel, spoke to him and asked if he was feeling okay. Samuel said 'Yes'. She then asked Samuel where he slept last night. Samuel said 'In the laundry'. Ms Taylor asked whether he had a blanket, to which he said 'No'.
13After you had left, Mr Hunter, Ms Taylor noticed injuries to Samuel’s body. She contacted an organisation called 'Child First' to report the matter and was referred to the then Department of Health and Human Services (DHHS). Ms Taylor was informed that police would be contacted and, in due course, police attended at the childcare centre.
14Senior Constable Robyn Foster spoke to Samuel about his injuries. As a result, Samuel went with the police to the Fawkner police station and a statement, in the form of video and recorded evidence (VARE), was obtained.
15To be clear, you, Mr Hunter, were found not guilty in relation to any of the physical injuries seen on Samuel. You are not to be punished for Samuel’s physical injuries.
16Samuel disclosed that the night before, he slept in the laundry around the washing, and that it was you, Mr Hunter, who told him to sleep there. Samuel said the laundry door was closed and he felt cold.
17Mr Hunter, on the same day that the matter was reported to police, you were interviewed by Child Protection practitioners at the Fawkner Police Station. During that interview you told the practitioners that Samuel was made to sleep in the laundry for the past four nights as he had been naughty. You stated that Samuel had begun wetting the bed again. You also said that Samuel was sleeping in the laundry without a blanket or pillow. In the course of being interviewed by the Child Protection practitioners you told them that you had smacked Samuel on the 'bum'.
18Mr Hunter, you were also interviewed by Senior Constable Foster in which you made admissions concerning the allegations of false imprisonment.
19Lauren Pendlebury, on 21 June 2018, police also spoke to you. When questioned about Samuel being in the laundry the previous night, you told them that you had had enough of his bad behaviour, his lying, his taking his seatbelt off in the car, and 'just all sorts of things'. You told police that you were at netball the previous night and got home at about 11.00 pm. Samuel was by then already in the laundry having been placed there by Mr Hunter. You also said that as a result of Samuel’s bad behaviour, you had asked Mr Hunter to take him back to his mother.
20On 17 July 2018, you were again interviewed by police, during which you stated:
(i)Samuel came to live with you, Mr Hunter and the other children in October 2017;
(ii)you had a good relationship with Samuel until around February 2018, when his behaviour changed;
(iii)it was your belief that Samuel’s behaviour changed because he was not getting as much attention due to the newborn baby, Caitlyn;
(iv)you and Mr Hunter discussed using the laundry as a form of punishment on the preceding Saturday, as you did not know what to do with him;
(v)Samuel was put in the laundry to have ‘time to think’ about what he did, and when he was ready to come out and say ‘sorry’ he could then come out;
(vi)you put Samuel in the laundry overnight on Saturday, 16 June 2018, and Mr Hunter put him in the laundry overnight between 17 and 21 June 2018;
(vii)the door was closed when Samuel was in the laundry. It was not locked;
(viii)Samuel was given Mr Hunter’s jumpers to sleep on; and
(ix)Samuel was told he could come out when he was ready to say sorry, but he refused and never came out.
21You also told workers from the DHHS that Samuel’s behaviour was ‘horrible’, that you got put through hell each day, that his toilet training got worse, and you thought he was actually doing it deliberately for attention.
22At the time you each offended against Samuel, he was four years of age. He was a child who I had previously ruled was an 'unavailable witness' under the provisions of the Evidence Act 2008.
23Reports of Dr Adam Deacon and Dr Teresa Flower, psychiatrists with expertise in child psychiatry, were tendered at a pre-trial application. Dr Deacon stated that his initial clinical impression was that Samuel appeared to function at a low intellectual range, struggled with verbal expression and probably verbal comprehension. He later reviewed clinical material subpoenaed from DHHS, Samuel’s primary school, and Berry Street’s Take Two.
24A cognitive assessment dated 15 May 2020 showed Samuel to have a full-scale IQ of 66, falling in the extremely low range. He was diagnosed with a mild intellectual disability. A speech language pathologist assessed Samuel’s speech and language on 8 May 2020, and found him to have severe difficulties in receptive language, expressive language, and core language.
25Dr Deacon noted that Samuel was an anxious child, although his symptoms did not reach the clinical threshold for a formal diagnosis.
26Dr Flower considered that Samuel had difficulties with severe receptive and expressive language disorder, mild intellectual disability, distractibility, short attention span and anxiety.
Victim Impact Statement
27A Victim Impact Statement was tendered on behalf of Samuel’s mother, Jane Hunter. It was read out in Court.
28Ms Hunter writes of her emotional struggle in coming to terms with the trauma Samuel was put through by a person she thought she could trust with Samuel. She states that her depression, stress and anxiety medication has increased as a result of what you did. Ms Hunter states that she has not been able to work as a result of the stress, appointments with Child Protection, and court appearances as she fought to have Samuel return home to her.
Background and personal history – Andrew Hunter
29Mr Hunter, you were born in January 1976 and were 43 years of age at the time of your offending.
30You report having enjoyed a positive childhood with your parents and two siblings. In 2009, your brother passed away from cancer. This had a significant effect upon you, as you and he had a very close relationship.
31Your father passed away in 2021, after a protracted period of dementia.
32Following being charged with the matters before me, your relationship with your mother and sister has been strained. It is your hope the relationship with them will improve upon finalisation of these proceedings.
33You attended Secondary College to Year 10 level. Despite some difficulties with literacy, you had a largely positive experience at school. You left formal schooling to join the workforce.
34Upon leaving school, you obtained employment in a warehouse where you worked until 2011, some 19 years. While working there, in 2007, you also commenced working nightshift in a confectionery factory to improve your financial position. You left that latter employment in 2009, when your brother passed away.
35In 2011, you commenced working as a courier driver. In 2015, you returned to factory work. In 2018, you were sacked from your employment after taking leave to attend a funeral. You were without work until July 2018, when you obtained employment in a warehouse. That employment ended in 2020, due to the COVID‑19 pandemic. After being unemployed for some four months, in late June, you gained employment as a warehouse manager where you are now employed. A reference from Damien Flack confirms your employment and speaks very highly of your work performance. He also speaks highly of Ms Pendlebury and your stepson Jack who also work in the warehouse, describing both as very hard working and lovely people.
36You have been involved in three significant relationships. You were in a relationship with Samuel’s mother, Jane, for some 5 years and married in 2010. You separated in April 2016. You and she had only the one child, Samuel.
37You commenced a relationship with Ms Pendlebury in about October 2016. In addition to Caitlyn, you have had another child with Ms Pendlebury, Lucas, who is four years of age.
38As a result of the charges against you and Ms Pendlebury, her older children were placed with their father, while Samuel was placed with his paternal grandmother. Samuel has since returned to live with his mother.
39Caitlyn and Lucas were allowed to remain living with Ms Pendlebury, as her mother moved in to provide direct supervision. You were not allowed to live with the children and so moved to a caravan park. When Ms Pendlebury’s mother was no longer able to live with her, Caitlyn and Lucas were placed in foster care with a good friend of Ms Pendlebury. At that time, as I understand it, you returned to live with Ms Pendlebury with whom you continue your relationship.
40You have contact with your two youngest children whom you see each Sunday. You have also been having supervised contact with Samuel since 2021.
41You deny any history of illicit substance abuse and drink about two standard units of alcohol per week. You do not have a criminal history.
42You were assessed by Laura Fleming, forensic psychologist, on 23 May 2023. In her report, dated 13 June 2023, she notes that at the time of the charges you were experiencing low mood and hopelessness due to your struggle to find work. Since being charged, you have experienced anxiety and low mood relating to changes in the family structure and a fear of the outcome of court proceedings.
43You told Ms Fleming that you attended a 'psychiatrist' for some five sessions shortly after the charges were laid. They were ended when the ‘psychiatrist’ became unwell. Ms Fleming thinks it may well be that the person whom you saw was a social worker, not a psychiatrist. You have also completed anger management and parenting courses. Ms Fleming stated you struggled to recall content or any learning from that intervention.
44When discussing the offences with Ms Fleming, you disagreed with 'all the facts' alleged and felt that the evidence provided by the children was 'force fed' by their father, as part of his ongoing dispute with Ms Pendlebury. It is not entirely clear what specifically you meant when you discussed that aspect with Ms Fleming, as you clearly admitted placing Samuel in the laundry and admitted smacking him on the bottom.
45You told Ms Fleming that at the time of the offending you were unemployed and did not receive any child support for Samuel. You said you were struggling to complete the paperwork necessary for unemployment benefits. You also said there were five children in the house, including an infant, and reported limited sleep as you would wake for the child so that Ms Pendlebury could obtain rest. You recalled feeling low in mood and being angry with yourself as you were struggling to find new employment. You said that you would not eat on some days to ensure the children had enough food.
46You also stated that Ms Pendlebury was often cross with you as she believed you were favouring Samuel over Caitlyn. This resulted, on a few occasions, in you sleeping with Samuel in your car overnight.
47You told Ms Fleming that the laundry was used as a 'timeout' for Samuel, so that he could reflect on his misbehaviour. You said that Samuel could always have left the laundry. Ms Fleming noted you had limited insight into the power dynamic you held as a parent and limited insight into Samuel’s reduced functioning.
48Ms Fleming is of the opinion that you represent a low to moderate risk of re‑offending. She considers that at the time you offended, you were experiencing psychosocial distress due to being unemployed and adjusting to living with your partner and five children in the house. She considers you were experiencing stress with limited ability to assert your or Samuel’s needs, and you appear to have engaged in behaviour to acquiesce your partner, prioritising fear around the loss of your relationship.
49Ms Fleming also considers that you have dependent personality traits. She considers that your mood disturbance is relevant to your general functioning and the offending conduct. You were found to suffer, on the Depression Anxiety Stress Scale, moderate depression and severe anxiety. That scale measured your symptoms in the week before your assessment on 23 May 2023.
50Ms Fleming considers that at the time of the offending, you developed symptoms of depression and anxiety which are consistent with an adjustment disorder and that are even now impacting your mental health and functioning.
51Ms Fleming also considers that at the time you offended, your emotional resources were stretched due to the psychosocial stressors limiting your ability to problem solve.
52A report from Drummond Street Services tendered on your behalf shows that you and Ms Pendlebury have attended an all-day program 'Stepping Up – Stepfamilies' on 15 September 2018.
Background and personal circumstances – Lauren Pendlebury
53Ms Pendlebury, you were born in July 1984 and are now 39 years of age.
54You were raised in what appears to have been a good family, enjoying a good relationship with your mother and father, three brothers and two half-sisters. Your father passed away earlier this year at the age of 68. He was employed as a truck driver. Your mother, who is now retired, worked as a carer for patients with acquired brain injuries.
55You successfully completed Year 12. You described yourself as an average school student, and your priority at school was sport. You were heavily involved in sport, particularly netball, and would either play sport or participate in training every night of the week.
56After completing your secondary education, you began work at a local supermarket. Since leaving school, you have maintained stable and consistent employment, interspersed with periods of maternity leave.
57In 2020, you completed various courses, including a Certificate III in Accounting and Bookkeeping, as well as medical administration and education administration. For the past two and a half years you have worked on a full-time basis as a warehouse assistant, with Mr Hunter and your son Jack.
58As earlier stated, you have three children from a previous relationship. You described that relationship as one of constant verbal abuse and later, physical violence. There is a current Family Violence Intervention Order against your former partner.
59You describe your relationship with Mr Hunter in positive terms. Caitlyn and Lucas, as I earlier mentioned, are in foster care. You have supervised visits with them on a weekly basis. Protection orders in relation to your other children have since lapsed. Jack has been living with you and Mr Hunter for over a year. Chloe, I was told, has recently returned to live with you and Mr Hunter.
60You do not have a criminal record. You have never used illicit substances and rarely consume alcohol.
61A report from forensic psychologist, Marlese Bovenkerk, dated 5 June 2023 was tendered on your behalf. You were assessed by her on 15 May of this year.
62You described to Ms Bovenkerk longstanding difficulties with anxiety which you attributed to bullying during your school years. You said you generally coped with the bullying by distracting yourself with sport and 'shutting down' your emotions.
63You discussed your offending with Ms Bovenkerk. You said that your children were going through different stages which you found difficult to manage, and you were caring for a very young baby, and suffering sleep-deprivation. You also reported experiencing difficulty with your former partner regarding the children.
64You said you had a positive relationship with Samuel in the early stages, but he later began to exhibit challenging behaviour. Samuel had been placed on a waitlist at Noah’s Ark, a support service for families with children with disability or additional needs, but you considered you needed help immediately as your mental health was deteriorating and you were not coping.
65You said that Samuel was placed in the laundry as a form of punishment for serious misbehaviour. You stated that you and Mr Hunter had run out of ideas about what else you could do. You were, however, reluctant to discuss this offending in detail with Ms Bovenkerk, repeatedly emphasising that you were not thinking at the time.
66Asked by Ms Bovenkerk how you have attempted to understand your behaviour since the offence, you stated that you were too busy to think and talk about it. You said you have not even looked back on it and that you are future focused. You acknowledged, however, that what you did was wrong.
67Ms Bovenkerk considers that at the time you offended, you appeared to have developed a major depressive disorder and a generalised anxiety disorder. She considers that your offending conduct is reflective of your low coping resources, and that you lacked the necessary skills to manage your emotions and cumulative stressors.
68Ms Bovenkerk assessed you as having a very low risk of general re-offending. She cautioned, however, that a very low risk of general re-offending is not necessarily commensurate to a risk of violent re-offending, which she did not assess.
69Reports of Kate Merckel, dated 21 February 2022 and 23 November 2022, were also tendered on your behalf. As at the date of her second report, Ms Merckel states you had attended 58 clinical psychological consultations between 7 August 2018 and 25 October 2022. It was recommended that you maintain engagement in therapy to continue your progress.
Submissions
70Ms Piggott, who appeared on behalf of the Director of Public Prosecutions, submitted that the following factors reflect the gravity of the offending in each of your cases:
i.the period of time over which the false imprisonment occurred;
ii.the offending involved a breach of trust;
iii.Samuel was exposed to threats to his health and/or safety that created a situation where he did not leave the laundry through fear of further physical punishment;
iv.Samuel was just four years of age and suffered from developmental delays and was vulnerable;
v.the conditions in which he was falsely imprisoned included having to sleep on a cold, tiled floor with no blanket; and
vi.this was not a spontaneous act of false imprisonment but one that had been planned punishment.
71Ms Piggott submitted that the false imprisonment of Samuel was shocking, callous and inhumane. In both your cases, she submitted, your moral culpability was extremely high.
72In oral submissions, Ms Piggott referred to the photographs of the laundry in which Samuel was kept, highlighting the fact that there was a glass door and that the flooring was made of tiles. This emphasised the cold conditions in which Samuel was kept overnight for four consecutive nights.
73Ms Piggott submitted that in your case Ms Pendlebury, your plea of guilty was not entered at an early stage, but she did accept it was entered at a reasonable time before trial. However, Ms Piggott submitted that you are not remorseful and showed no insight into your behaviour.
74In relation to you, Mr Hunter, Ms Piggott submitted that you too are not remorseful for your conduct, and that you have never accepted that what you did was unlawful. She submitted that you too, have no insight into the inappropriate and unlawful behaviour in which you engaged.
75Mr Grant, who appeared on your behalf, Mr Hunter, accepted that the false imprisonment charge was serious and accepted that you engaged in parental chastisement that was completely unreasonable.
76In relation to the assault charge, Mr Grant submitted that this involved a single smack, over Samuel’s clothing, with an open hand. Moreover, it was entirely your own admission during police interview that formed the basis of the charge and subsequent conviction. Mr Grant submitted that this offending is at the lower end of the scale of seriousness.
77Mr Grant relied upon the matters contained in the psychological report as to the stress you were under at the time you committed the offences.
78In respect to both offences, relying on the matters set out in Ms Fleming’s report, Mr Grant submitted you were then experiencing 'psychosocial distress', and an adjustment disorder with mixed anxiety and depression, which remained at the time of the plea hearing.
79Regarding the false imprisonment, Mr Grant submitted that when interviewed by police and Child Protection workers, you admitted to your conduct, explaining that the laundry was Samuel’s 'naughty corner'. He submitted that there was no malice in you placing Samuel in the laundry but, rather, your conduct demonstrated a complete lack of sound parental judgment.
80Regarding your prospects for rehabilitation, Mr Grant submitted that not only do you not have a prior criminal history, you have also not committed any offences since these offences were charged. You do not evidence a criminal belief system and represent a low to moderate risk of reoffending.
81Mr Grant submitted it was to your credit that you have engaged in parenting and anger management treatment that has improved your baseline knowledge. In all the circumstances, he submitted that you have excellent prospects of rehabilitation.
82Given the diagnosis of an Adjustment disorder, Mr Grant submitted that the fifth limb of Verdins[1] has application, in particular, that a sentence of imprisonment will weigh more heavily on you than it would on a person in normal health. Further, he submitted, a custodial environment would necessarily remove you from employment and undermine the progress you have made to date.
[1]The Queen v Verdins (2007) 16 VR 269
83Mr Grant also relied on the significant delay that has occurred between the date of your offending and date of sentence. This is now a period in excess of five years and four months. Mr Grant submitted that having these charges hanging over you for such a period, and the fear of the Court outcome, has added to your symptoms of depression and anxiety.
84Mr Grant submitted that a Community Correction Order was appropriate in all of the circumstances. Relying on the decision in Boulton v R[2] he submitted that a Community Correction Order is punitive, coercive, and intrusive. It is, he submitted, a very significant punishment, providing also for specific and general deterrence.
[2](2014) 46 VR 309
85Regarding the gravity of your offending, Mr Grant submitted that there was no malice or accompanying threats of violence. He accepted that the four nights in the laundry was protracted offending. Mr Grant relied on your admissions and the fact that the trial was run on a narrow basis, where you did not acknowledge that your conduct was unreasonable.
86With regard to the issue of delay, Mr Grant noted that you have been fully compliant with bail conditions and attending court as required. Importantly, you have not been in any further trouble with the police.
87Mr Grant also relied on there having been extra-curial punishment, in that you have, for so long, been deprived of an opportunity to develop and continue a meaningful relationship with your children. You are, I was told, pursuing this through the Children's Court, but progress cannot be made until the criminal charges have been finalised.
88Mr Grant submitted that the community will be best served through you engaging in interventions to improve your coping skills, mental health issues, parenting skills and personality traits. This will be best achieved, it was submitted, through a Community Correction Order.
89In further submissions, Mr Grant submitted that whether it is to be regarded as extra-curial punishment or a consequence of the lengthy delay, your loss, Mr Hunter, of opportunity to have a meaningful relationship with your children is a significant punishing consequence.
90Mr Dickinson, on your behalf Ms Pendlebury, submitted that your plea of guilty was of significant utilitarian benefit, particularly as it was entered during the period of the COVID-19 pandemic. He submitted that it was entered at the earliest reasonable opportunity, given that there were other charges in existence before resolution.
91With regard to your plea of guilty, Mr Dickinson submitted it demonstrated an acceptance of responsibility on your part for your offending and was indicative of remorse.
92In relation to your personal circumstances, Mr Dickinson submitted that your background is unexceptional. You are, he said, a decent, hardworking person and that this is your only contravention of the law. Mr Dickenson highlighted that you have engaged fully in treatment with Ms Merckel, and you are willing to engage in further counselling and education. All of these factors, coupled with your strong family support, it was submitted, suggest you have excellent prospects of rehabilitation.
93Mr Dickinson advised that in recent months, as I have mentioned, your daughter Chloe has returned to live with you, Mr Hunter and your son, Jack. With your two youngest children, I was told that proceedings are on foot to have them returned to you. I was informed that that Department needs to do a risk assessment but will not do so until these proceedings are finalised.
94Mr Dickenson also placed reliance on the significant delay between you being interviewed by police and sentenced, during which time you have had this matter hanging over you. You have not offended during that period of over 5 years.
95Mr Dickinson also submitted that the delay has an extra-curial dimension, particularly with the two youngest children residing with a foster carer, and you having only supervised weekly visits. Moreover, Mr Dickenson submitted that while you were pregnant with Lucas, you were informed by the Department that your child would be taken from you upon his birth. This added, he said, to your mental stress. You have lost a significant period, it was submitted, in the developmental stages of your two youngest children.
96Mr Dickinson submitted that Verdins’ limbs 1, 3 and 4 apply given Ms Bovenkerk's diagnoses of a generalised anxiety disorder (in partial remission), and major depressive disorder (in full remission). It was submitted that at the time of your offending, you were likely experiencing a decline in your mental health stability.
97Regarding the objective gravity of your offending Mr Dickinson submitted it was a low-level example of a serious offence and it was not offending born out of malice. With regard to your moral culpability, Mr Dickinson submitted that you were a parent lacking in coping strategies for managing a particularly difficult situation, and hence, your moral culpability is of a low level. He submitted that in relation to the false imprisonment, Samuel had the option of leaving the room, although he conceded that on an objective basis it was unreasonable to rely on that factor.
98Regarding your remorse, Mr Dickinson submitted that you accept you should not have placed Samuel in the laundry, and you instruct him that you are sorry for what you did. He submitted you were not in any respect an anti-social person.
99Mr Dickinson submitted that you were suffering post-natal depression at the time of your offending which impacted your behaviour and choices. This, he argued, significantly moderates the need for general deterrence and specific deterrence.
100Regarding your moral culpability, Mr Dickinson submitted it was reduced because of the mental health issues you were suffering at the time, the difficulties you were experiencing with your domestic situation and emotions. Your conduct, he submitted, was not borne out of malice and was a poor attempt at discipline.
101Mr Dickenson submitted I should sentence you to an adjourned undertaking without conviction.
102In reply, Ms Piggott disputed in your case, Ms Pendlebury, that the diagnosis of post-natal depression greatly reduced the need for general deterrence. It was submitted that general deterrence looms very large in this case, and there was also a strong need for specific deterrence.
103With regard to your counsel's reliance upon Verdins’ principle 1, Ms Piggott submitted that the psychological evidence tendered on your behalf did not warrant a reduction in your moral culpability.
104The psychological evidence, she submitted, does not suggest that because you were suffering post-natal depression, that condition was causally linked to the false imprisonment of Samuel.
105Ms Piggott submitted that in both your cases, the principles of general deterrence, denunciation and just punishment are significant. This was an extremely vulnerable child who was punished in a planned, calculated manner. Your conduct, Ms Piggott submitted, went beyond poor parenting.
106In your case Mr Hunter, Ms Piggott submitted that the diagnosis of 'adjustment disorder' does not provide you with much by way of assistance in mitigation.
107She did concede, however, that it was obvious that your emotional resources had been stretched by reason of the pressures in your domestic environment. However, Ms Piggott submitted, you have not undergone any significant counselling or treatment.
108Ms Piggott also pointed to the fact that you show very limited insight into the power dynamic between yourself and Samuel, and that there was a significant backdrop of physical and verbal chastisement and conflict directed at Samuel.
109In your case, Ms Piggott also submitted that there was a strong need for general deterrence, denunciation and just punishment. Specific deterrence, she said, also had a role to play in sentencing.
110Ms Piggott submitted that whilst she was not able to find any comparative cases, the only sentence reasonably open in respect of each of you, was one of a term of imprisonment.
Sentencing considerations
111Ms Piggott set out a detailed chronology in her written submissions to which I will refer in part.
112The charges you each originally faced were first listed for trial on 17 February 2020. That trial was vacated and adjourned to 29 June 2020 so that an expert report from a child psychiatrist could be obtained. That second trial listing was vacated because of the COVID-19 pandemic. There were then several pre‑trial hearings listed before me over the period 6 September 2021 to 19 January 2023.
113You, Ms Pendlebury, made an offer to plead guilty on 24 January 2023, and on 12 April 2023, were arraigned on the single charge of false imprisonment to which you pleaded guilty.
114You, Mr Hunter, were tried between 12 April 2023 and 2 May 2023 on the four charges. As earlier mentioned, you were found guilty of the two charges for which you now fall to be sentenced, and acquitted of the serious injury charges. Both your matters were listed for plea hearing on 16 August 2023 and 8 September 2023.
115In my opinion, the false imprisonment charge against each of you is a serious instance of an otherwise serious offence. The maximum penalty is one of 10 years' imprisonment.
116Samuel Hunter, then four years of age, and a very young child suffering from developmental and speech difficulties was kept overnight, in the laundry, on a hard-tiled surface, with no bedding and no heating, for four nights in succession, during winter. It is most difficult to understand that either of you could have considered this reasonable parental discipline. It was not. Neither of you appear to have any insight into how far beyond the realm of what is reasonable discipline this was, particularly you Mr Hunter. Neither of you appear to have any insight into the power imbalance between you and Samuel, or any insight into Samuel's cognitive difficulties. The punishment you chose to inflict on Samuel, I accept, was cruel and inhumane. It was conduct that deserves to be denounced and condemned by the Court.
117Samuel was a vulnerable child. Parents are entrusted with the responsibility to ensure the appropriate care of their children. They are entrusted to impose only reasonable discipline when required. I accept the prosecution's submission that there was a breach of trust in both your cases.
118I do not, however, accept that the degree of moral culpability in each of your cases could be viewed as 'very high' as contended by Ms Piggott. In your case Mr Hunter, I accept that you were experiencing psychosocial distress, difficulty adjusting to living with Ms Pendlebury and the five children in the house, and the financial and social difficulty of being unemployed. I also accept in your case Ms Pendlebury that you were experiencing a number of psychosocial stressors including difficulty in caring for Samuel in addition to caring for your infant daughter. I consider that neither of you had the necessary coping skills and parenting skills to manage Samuel's behaviour. Although this lowers your moral culpability to some extent, it provides no excuse for your behaviour. You both had ample opportunity to reflect on this form of punishment.
119In relation to the common law assault charge of which you were found guilty, Mr Hunter, I find that this falls at the lower end of the spectrum of seriousness. The maximum penalty applicable to that charge is one of five years' imprisonment.
120I have had regard to the fact that when interviewed by police you both made admissions to placing Samuel in the laundry over the charged period. That is a significant consideration in each of your cases. I also have regard to the fact that in your case Mr Hunter, the charge of common assault is based upon your admissions made to police when interviewed. These factors weigh in favour of mitigation in each of your sentences.
121You, Mr Hunter, pleaded not guilty to the false imprisonment and assault charges. That was your right. You are not to be punished for pleading not guilty, but you are not entitled to the significant benefits that often attach to pleas of guilty.
122In your case, Ms Pendlebury, you are entitled to a reduction in penalty for the utilitarian benefits attaching to your plea of guilty. Your plea of guilty is of added significance having been entered at a time when the COVID-19 pandemic was impacting on the Court's ability to list trials for hearing. However, I accept the prosecution's submission that your plea was not entered at an early time. With regard to the issue of your remorse, while you acknowledged that your behaviour was wrong, I am troubled by the fact that you told Ms Bovenkerk that you were too busy to think and talk about it, and that you had not even looked back on your behaviour. I do not know if you are truly remorseful for your behaviour and am unable to make a finding that you are remorseful on the balance of probabilities.
123I do not accept the applicability of Verdins’ principle 1 in your case Ms Pendlebury. Ms Bovenkerk, at paragraph 103 of her report, speaks in terms of possibilities. She states that:
'Whilst depression in itself does not directly cause an individual to offend, various studies indicate that mood states other than sadness, such as irritability and anger, exist in subjects with depressive symptoms which can result in displacement of these emotions, leading to episodes of behavioural dyscontrol or violence. Negative affective states inherent in Major Depressive Disorder and Generalised Anxiety Disorder can also alter cognition and behaviour, impairing the ability to rationalise, consider alternative responses and impact decision making'. (emphasis added)
I do not consider that the report of Ms Bovenkerk establishes the necessary link between the Major Depressive Disorder and the Generalised Anxiety Disorder and your offending. Moderate allowance only will be made in respect of Verdins’ principles 3 and 4 as the symptoms of the Major Depressive Disorder and Generalised Anxiety Disorder, at the time you offended and now, do not appear to have been or be of such a nature and severity as to require anything more than slight moderation.
124In your case, Mr Hunter, I accept that if I was to sentence you to a term of imprisonment, by reason of your adjustment disorder, any such term will weigh more heavily on you than it would on a person in normal health.
125I accept in each of your cases that the delay between the commission of the offences and your ultimate sentence is inordinate. In Stafford v The King[3], the Court considered that the delay of 4 years, none of which was attributable to the appellant, imposed a heavy burden on all parties, including the appellant.
[3] [2022] VSCA 229.
126At paragraph 28, the Court stated:
'Similarly, an unresolved plea of not guilty over an extended period over and above that which might reasonably be required to bring a matter to trial is a burden that must be acknowledged and taken into account by a sentencing judge as appropriate. … and the burden of a delay in trial is not to be ignored merely because the accused person is ultimately found guilty.'[4]
[4] Ibid [28].
127During the approximate five years and four-month period between committing the offences and being sentenced, you have both had the stress of these charges hanging over you; your relationship with your children has been significantly impacted; you have both complied with all conditions of bail; and you have not been in any further trouble with the law. I consider, in those circumstances, the delay is a significant mitigating factor.
128I have considerable regard also to the fact that neither of you have been in any other trouble with police. Essentially, you have led good and hardworking lives. Your character references speak well of you. You, Ms Pendlebury, I was told, continue to receive good support from your mother and siblings.
129In your case Ms Pendlebury, Kerry O'Dwyer states she has known you for over five years and is the netball coach of your oldest daughter. She states that she was in shock when learning of the charge as, in her words, she had only ever seen affection and encouragement from you towards all of your children. She is aware that you have undertaken parenting courses and received psychiatric help to learn to deal with your emotions and to better cope during difficult times. She considers you have grown as an individual in all aspects of your life.
130Ms O'Dwyer also provided a reference for you Mr Hunter. In discussions with you, Ms O'Dwyer states that you frequently questioned whether you could have done things differently. She states that the removal of the children from your care has badly affected you. She states that you have also been of great support to her following a number of deaths in her family, and difficulties at work.
131It is my opinion, each of you have very good prospects of rehabilitation. However, it is clear that you both need continuing treatment and counselling as recommended by each of the psychologists who assessed you.
132I have had regard to the sole case involving false imprisonment of a child to which I was referred by Ms Piggott. I accept that that case is significantly different to the case before me and is of little value as a comparative case. I have not been able to find a comparative case that is similar in circumstance.
133Contrary to the submission of Mr Dickinson, I do not accept that general deterrence is of limited relevance, even making the allowance he sought under the Verdins’ principles. Persons who are entrusted with the care of children must understand that there are boundaries to appropriate parental discipline, and failure to observe those boundaries may attract stern punishment. General deterrence is relevant in both your cases.
134I accept, that the need for specific deterrence in each of your cases is reduced given my findings as to your prospects for rehabilitation, and the fact that neither of you have been in any other trouble with the law. I consider that the course and stress of these proceedings, and the removal of your children, has already had a significant deterrent effect upon each of you.
135As a direct result of your offending, the Department of Health and Human Services caused to have all your children, not just Samuel, removed from your care. I accept the submissions of both defence counsel that this constitutes a form of extra curial punishment. You have both already suffered serious detriment with the removal of your children over a significant period of time. Lucas, as I understand it, was removed shortly after his birth. This is not insignificant punishment in itself. You have taken steps to try and have the children returned to your care, and you are still in the process of applications to the Childrens' Court contesting the Department's decision. Such detriment continues in respect of the two youngest children and Samuel.
136While your offending is serious, I do not accept that the only sentencing disposition open to me is one of imprisonment. I also do not accept, in your case Ms Pendlebury, that the disposition urged by your counsel is open. In my opinion, an adjourned undertaking without conviction would not reflect appropriately all of the sentencing considerations to which I must have regard, including the fact that you have committed a serious offence.
137I accept the submission of Mr Grant that in all the circumstances in your case Mr Hunter, a Community Correction Order is open. I consider this to be the just and appropriate decision in both your cases.
138I have received pre-sentence reports prepared by Corrections Victoria. You have both been found suitable for a Community Correction Order. It is the recommendation of the assessing officer, Ms Borich, that I impose an order that only requires the performance of community work. Notwithstanding that recommendation, I am guided by the reports of your respective psychologists. In your case, Mr Hunter, you require appropriate treatment for your adjustment disorder, with possible pharmacotherapy and intensive psychotherapy. In your case Ms Pendlebury, Ms Bovenkerk, whilst she recommends that you continue to engage in treatment with Ms Merckel, also recommends treatment with a forensic psychologist.
139Having regard to the submissions of the prosecution and defence counsel, and taking into account all relevant sentencing principles, I will now turn to sentence. Please stand up Mr Hunter.
140I propose to place you on a Community Correction Order in respect to both charges that will last 22 months commencing today, ending on 30 August 2025.
141You will be required to report within two clear working days after the commencement of this order to the South Morang Community Correctional Services office.
142The mandatory conditions that apply to all Community Correction Orders will apply and they are that:
·You must not commit another offence for which you could be imprisoned during the time that the order is in force;
·You must comply with any obligation or requirement prescribed by regulation 15 of the Sentencing Regulations 2021. That means essentially that you must not attend at the Office of Community Corrections, or any other place to where they direct you, under the influence of alcohol or drugs;
·You must report to and receive visits from the Secretary or his/her delegate;
·You must let a Community Corrections officer know within two clear working days of you changing your address or job;
·You must not leave Victoria without first getting permission to do so from the Secretary or his/her delegate; and
·You must obey all lawful instructions from and directions of the Secretary or his/her delegate.
143In addition to the mandatory conditions, I will direct that you perform 120 hours of unpaid community work over the 22-month period, as directed by the Regional Manager. If you fail to comply with this order, the Secretary to the Department of Justice or his/her delegate may give you a direction to perform additional hours of unpaid community work in accordance with s 83AU of the Sentencing Act.
144You must also be under the supervision of a Community Corrections officer for a period of 22 months.
145You must undergo any mental health assessment and/or treatment, and that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager.
146Mr Hunter, do you understand each of the conditions I have just read out to you?
147OFFENDER HUNTER: Yes, Your Honour.
148HIS HONOUR: Do you wish to speak to Mr Grant before any further action is taken?
149OFFENDER HUNTER: No, I don't think so, Your Honour.
150HIS HONOUR: Mr Grant, do you wish to speak to Mr Hunter?
151MR GRANT: No, Your Honour. I've been through the conditions (indistinct), thank you.
152HIS HONOUR: Mr Hunter, do you also understand that if you breach the Community Correction Order you can be charged with a criminal offence that carries a maximum penalty of three months' imprisonment and you can also be brought back to this court for breach proceedings, and I can re-sentence you on the original charges?
153OFFENDER HUNTER: Yes, Your Honour.
154HIS HONOUR: Do you agree to being placed on the Community Correction Order in the terms that I have outlined?
155OFFENDER HUNTER: Yes, Your Honour.
156HIS HONOUR: Very well. I will sentence you to a Community Correction Order in the terms that I have just read out. You may be seated.
157OFFENDER HUNTER: Thanks, Your Honour.
158HIS HONOUR: Ms Pendlebury, please stand.
159I propose to place you also on a Community Correction Order. In your case the order that I propose will last for 15 months commencing today and ending on 30 January 2025.
160You will be required to attend the South Morang Community Correctional Services office within two clear working days after the commencement of this order.
161The mandatory terms that apply to all Community Correction Orders are as follows:
·You must not commit another offence for which you could be imprisoned during the time that the order is in force;
·You must comply with any obligation or requirement prescribed by regulation 15 of the Sentencing Regulations 2021. Again, that means you must not attend at the Office of Community Corrections, or any place to where they direct you, under the influence of alcohol or drugs;
·You must report to and receive visits from the Secretary or his/her delegate;
·You must let a Community Corrections officer know within two clear working days of you changing your address or job;
·You must not leave Victoria without first getting permission to do so from the Secretary or his/her delegate; and
·You must obey all lawful instructions from and directions of the Secretary.
162Additional conditions are that you must perform 80 hours of unpaid community work over the period of 15 months, as directed by the Regional Manager. If you fail to comply with this order, the Secretary to the Department of Justice or delegate may give you a direction to perform additional hours of unpaid community work in accordance with s 83AU of the Sentencing Act.
163You must also be under the supervision of a Community Corrections officer for a period of 15 months.
164You must undergo any mental health assessment and/or treatment, and that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager.
165I should say to you, and I will return back to you Mr Hunter, this penalty is by way of conviction.
166Now do you wish to speak to Mr Dickenson before I ask you whether you understand the conditions, and whether you agree to being placed on an order?
167OFFENDER PENDLEBURY: No, I think it's fine, Your Honour.
168HIS HONOUR: You may approach if you wish, Mr Dickenson.
169MR DICKENSON: Thank you, Your Honour. I perhaps just rise to my feet to clarify the terms of the order. Is it Your Honour's intention that there be a condition that the mental health treatment count as community work hours?
170HIS HONOUR: No, it's not.
171MR DICKENSON: It's not? Thank you, Your Honour.
172HIS HONOUR: Do you wish to approach?
173MR DICKENSON: No, Your Honour.
174HIS HONOUR: Thank you. Ms Pendlebury, do you understand all of the conditions that I have read out?
175OFFENDER PENDLEBURY: Yes, Your Honour.
176HIS HONOUR: Do you also understand that should you breach the order, you can be brought back to this court, charged with a criminal offence and sentenced on that offence, and also re-sentenced on the matter to which you have pleaded guilty.
177OFFENDER PENDLEBURY: Yes, Your Honour.
178HIS HONOUR: With that understanding, do you agree to being placed on a community correction order?
179OFFENDER PENDLEBURY: Yes, Your Honour.
180HIS HONOUR: You may be seated.
181OFFENDER PENDLEBURY: Thank you.
182HIS HONOUR: Mr Hunter, just stand again. I omitted to say that your sentence is also with conviction. I will ask you, Mr Grant, to approach Mr Hunter to explain that to him and then advise me whether he still agrees to being placed on the order.
183MR GRANT: As Your Honour please. Thank you for that, Your Honour. Your Honour can ask directly if he wishes to be on the Community Correction Order.
184HIS HONOUR: No, you can answer that. He does, does he?
185MR GRANT: He does, yes.
186HIS HONOUR: All right, thank you. You may be seated, Mr Hunter.
187Very well, I will ask that the Orders now be printed out and checked by counsel and then have your clients sign those orders.
188MR GRANT: As Your Honour pleases.
189HIS HONOUR: Ms Pendlebury, had you not pleaded guilty to the offence, the penalty I would otherwise have imposed is one of 21 months' community corrections order on the same conditions, save that the hours of work would have been 100 hours.
190MR DICKENSON: Your Honour pleases.
191HIS HONOUR: May I thank all counsel and your instructors in this difficult matter, for your assistance you have provided throughout the lengthy course of this proceeding and the plea and sentence. There being no other matters, I will now adjourn the court.
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