Director of Public Prosecutions v Hyatt

[2015] VCC 748

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

AT WODONGA
CRIMINAL JURISDICTION

CR 15-00873

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEVEN HYATT

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Wodonga
DATE OF HEARING:
DATE OF SENTENCE:	4 June 2015
CASE MAY BE CITED AS:	DPP v Hyatt
MEDIUM NEUTRAL CITATION:	[2015] VCC 748

REASONS FOR SENTENCE
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Catchwords:  Criminal law – Sentence – sexual penetration of a child under 16 - using a carriage service to transmit child pornography – sentenced to TES of 13 months with a community corrections order of 3 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore
For the Accused	Ms D. Price

HIS HONOUR: 

1Steven James Hyatt you pleaded guilty to six charges of sexual penetration of a child under the age of 16, and two charges of using a carriage service to transmit child pornography material.  The relevant offending spans the period from 6 June 2014 to 21 December 2014.

2There are four victims in this matter.  I will refer to them by letter for purpose of privacy and anonymity.  B was 13 years of age at the time of the offending.  T was 14 years of age at the time of the offending.  Y was 15 at the relevant time, and C was 14 years old at the time of the offending.

3You were born in February 1995 and say you were aged 19 years at the time of the offending.  Your co-accused Westcott, was also 19 years old.  Circumstances of the offending are contained in a summary of prosecution opening which was tendered and exhibited during the plea.  It will be retained on the court file, for purposes of this sentence, a brief summary of the circumstances will suffice.

4Y met you at a party, she told you of her age and you exchanged contact details.  That was in mid-April 2014.  In June 2014, you engaged in penetrative sexual activity in your car with her.  You knew she was 15 years old.  In early June you and Westcott collected her and T and drove them to Mr Westcott's house in Wodonga.  During the drive, T told Mr Westcott that she was 14 years old.  Both the girls were wearing school uniform.  Once at the house you and Y had sexual intercourse, Charge 1 relates to these events as a composite charge, which I understand to be a term used in relation to a rolled up charge.

5On this occasion you used a condom.  After a short break you again had sexual intercourse with Y.  This was the subject of Charge 2.  Westcott and T at some point were present in the room with you and photographs were taken while T was performing oral sex on you.  The photographs showing the four of you posing in a group sexual position were tendered.

6After you drove the girls home you joked about the photograph that was taken and said that your mates would love it.  Later that day on the following day you used your mobile phone to send a number of messages to friends, attaching the image taken earlier depicting the two girls.  Those images were tendered in evidence.  You sent them to five of your friends and that is the basis for Charge 3, of using a carried service to transmit child pornography material.

7In mid-June, B and T organised for you and Westcott to pick them up in a car.  During the drive B told Westcott that she was 13 years old, which he acknowledged.  That conversation was in your presence.  After arriving at Westcott's residence, another friend took a number of photographs and then, you then had sexual intercourse with T, Charge 4.  While this was happening, B was having sex with Westcott.

8A short time later in the bathroom you and Westcott used your mobile phones to take photos of the group, which depicted the girls bent over and the two of you behind them.  After this B began gathering her clothes and you asked her, "Do you want to do anything?"  To which she responded that she did not want to.  You said, "Okay we'll just cuddle."  However shortly afterwards you penetrated her vagina with your fingers.  This is Charge 5.

9The following day you used your mobile telephone to send a number of messages to friends attaching the image taken the previous evening.  That is the basis of Charge 6.  A few days later T became aware the photographs taken at Westcott's house were in circulation and posted on Facebook.  She advised B and both saw the photographs being re-posted and viewed by a number of people.  T then made a report to the police and B made a statement disclosing the offending.

10On 10 July you were arrested and interviewed and you denied being responsible for the photos being posted on the internet.  Your phone was seized and later analysed.  It was found to contain a series of messages between yourself and Westcott, persistently looking to have sexual experiences with girls, and bragging about the same.  As well as providing a record of you sending the child pornography images by way of messages.  You were released pending summons.

11In November 2014, you and Westcott befriended C on Facebook.  Each of you exchanged messages with her and one another, discussed your intentions to have sex with her at the same time.  Your messages to C became sexually explicit and discussed plans to meet.  During your messaging C told you she was 15 years old.  On 10 November 2010, a friend of yours drove to Wodonga where you collected C and took her to a friend's house.  You took C to a bedroom, you bent her over at the waist and pressed yourself against her.  She said it "Don't do that because I don't like it," and you asked "Don't you want to have sex with me?"  You were together on the bed with her and you inserted your fingers into her vagina.  This was the basis of Charge 7.

12You then penetrated her vagina with your penis.  This is Charge 8.  You were not wearing a condom at the time.  During this activity you also penetrated her from behind.  This was Charge 8 being a composite charge.  You told her that you were about to ejaculate and despite the fact that she told you take it out before you did, you kept your penis inside of her and ejaculated.  You then asked her if she was on the pill and told her you had ejaculated inside her.  You then drove her home.  Later that evening you mentioned the day after pill because you were stressed by what had occurred.  C was obviously concerned and discussed this matter with friends, told them she was worried she might be pregnant.  She agreed that she had agreed to have sex with you, but was now concerned.  Her brother saw the messages between her and you and contacted the police.  C wrote to you telling you of this.  She then went to the Wodonga Police Station with her mother.

13On 12 November police came to your address.  You were uncooperative and aggressive.  When you were informed that you were under arrest you uttered obscenities to the police and closed the door.  Later you opened the door and challenged police by saying, "What are you gonna do now?"  They sprayed you.  It was deployed to subdue you and you were to custody.  This was the summary charge No.6.  That arrest was affected at 2 am in the morning.  At about 3 am you were interviewed at the police station.  Thereafter you were bailed with a number of strict conditions.

14A few days later a police officer was informed the proposed changes to your address.  However by 2 December, you had again changed address, but failed to notify police in breach of your bail conditions.  This was summary charge No.1.  About a week later you logged onto Facebook and posted a message that you were leaving Wodonga for Sydney.  This Facebook interaction also breached your bail.  Between 12 and 17 December, you accessed Facebook on numerous occasions and amongst other interactions you became friends with 13 females, one of whom was aged 15, one of whom was aged 14.  This Facebook interaction breached your bail.

15On 19 December you posted a message on Facebook, accusing the victims of lying.  You specifically named Y by name.  You also sent a Facebook message to her complaining about your predicament.  Your contact with the prosecution witness breached your bail.  This was summary Charge 16.  On 19 December police published information about a warrant issued against you.  Three days later you posted an invective in response in which you made a number of accusations of the police, placing blame on them, on the victims and making excuses for your behaviour.  This was a further breach of your bail condition, part of Charge 2 summary offence.

16On 22 January 2015, you were arrested after you handed yourself in.  You had spent time in Wagga-Wagga with family members.  You were remanded for your breaches of bail. You were charged on 6 March 2015 and on 16 April the committal mention proceeded in relation to the offending against all victims and the breaches of bail, and your bail in relation to the sexual offences was revoked.

17The victim impact statements were received into evidence and I have received a further one this morning, and I take them into account.  Y attested to the aftermath of these encounters with you.  There is reason based on good sense and long experience which focuses on the immaturity and inexperience of life, which makes such offending not what had been envisaged or idealised particularly by the young girls in these circumstances.  They are invariably the ones left with residual feelings of having been used, of having placed themselves in jeopardy, vulnerable, and then subjected to ridicule, name-calling; subject of degrading and humiliating actions and images.

18In the case of Y, the name calling, the consequences in fact began very quickly upon her return to school.  The impact however was well beyond this.  She had to move to Melbourne, her relationship with her family has been significantly impacted.  She remains anxious, has lost friends and is seeing a counsellor.

19B was 13 at the time, she felt threatened and really unable to control the situation she found herself in with you.  Her friendships have been affected and she was bullied.  She moved schools and the emotional upheaval has been significant.  Again, her family relations have become strained, and her activities have become curtailed.  Her mother also provided a very powerful statement as to the effects on families of these offences.  The stress impacted negatively on study undertaken by her caused significant financial loss and emotional distress.  The aftermath involved a loss of sleep and appetite.  The other children in the family have also been affected.  Fear, anger and resentment have permeated the home.  Depression and anxiety followed.  The effect of the reckless use of social media in a relatively small community has affected opportunities in relation to work and affected reputations.

20Y's mother has written of the many effects of your offending upon their family.  Y has had to move schools and live with her grandparents, as she herself attested.  Her mother writes of Y's anger, the offending has affected Y's mother by way of her emotions and wellbeing.  She has witnesses Y's personality changed, engaging in risky behaviour and withdrawing from parental and societal norms.  Her mother writes of the lack of trust, which these events have engendered.  I take these statements into account.

21It would be wrong to seek to blame the victims, young girls, for your behaviour.  The text message exchanges which were tendered, show that you almost continuously engaged in sexualised exchanges with them and with your friends, who seem to be solely preoccupied with sexual pursuits, persistently and obstinately to the point of appearing to be obsessive.  In my view your behaviour, which you rationalised as innocuous because of the consent of the girls concerned was manipulative and essentially focused on your sexual gratification.  The girls became objects which you could not only satisfy your sexual drive, but provide trophies for your boasts to your friends.

22Even in the context of your dealings with C, I have read long exchanges between you and her and your motives must be brought into question by your offending behaviour overall.  In my view the estimation of the offending places it in a category which is serious, repeated and deserving of punishment, denunciation by the court and a measure of retributive sanctioning for the rights you carelessly infringed.

23The law stipulates maximum penalties of ten years for sexual penetration of a child under 16, and 15 years for the use of a carriage service to transmit child pornography under the Criminal Code Act 1995 (Cth). Your offending also encompasses breach of bail, which you committed in flagrant disregard of your obligation, which appears typical of your approach to these events. Indeed your approach to the police was totally unacceptable and demonstrative of someone who failed to understand the seriousness and inappropriateness of your behaviour. These contraventions carry a maximum three months' imprisonment or 30 penalty units and the assault charge six months' imprisonment, or 60 penalty units.

24I take into account your personal circumstances.  The most relevant and important factor is your youth.  You are now 20 years and therefore the consideration of the court must turn to the importance of rehabilitation and reclamation.  In order to properly apply this important sentencing principle, I have taken into account your prior criminal history and personal circumstances, to see whether these matters confirm or diminish the value of your youthfulness and the application of that principle to the sentencing discretion.

25Your prior criminal history goes back to the Children's Court, where you appeared between 2009 and 2013 for various offences involving damaging property; behaving in an offensive manner and assault, to name a few.  In 2012 you were placed on a youth supervision order for 12 months for recklessly causing serious injury; intentionally causing injury;  affray amongst others, including contraventions of a family violence intervention order.  In 2013 you were placed on a youth attendance order for recklessly causing injury, an order you breached in 2013, but which was confirmed.

26In 2014 you were placed on a community corrections order for offences committed in March of that year being criminal damage; assault and being drunk in a public place.  You were directed to undertake programs to reduce offending, however, within a few months of that order being made, you committed these offences.  That may reveal something of your attitude to the sanctions of the court.  This attitude is reflected also in the notable fact that after the June offences you had been interviewed by police and released pending summons.  You were again interviewed in November for these matters, so the November matters took place with the knowledge that similar behaviour had been investigated in June by police, and you had been questioned by them about it.  This shows the disregard you had for any questioning investigation or your behaviour and emphasises your lack of insight to your offending at least at that time.

27I take your plea of guilty into account.  It occurred at an early stage of proceedings and the matter proceeded by way of hand up brief at committal  without cross-examination of the victims or other witnesses.  I accept that you have expressed some remorse for your behaviour.  Although such a sentiment is often difficult to properly assess.  I accept your pleas accompanied by some expressions of genuine remorse.

28I heard evidence from Ms Payne, your partner, in effect and the mother of your child, who is now aged two, a daughter.  Ms Payne has condemned your behaviour which occurred during your relationship, but has remained supportive.  She is a positive influence and factor on your prospects of rehabilitation.  You also have the support of your father, step-mother and siblings.  Your experience on remand has been marked by the restriction of family visits, delaying completion of reconstructive surgery for your ear, and the placement into protective custody in May.  I have no reason, except your youth, which would lead to such a placement and its duration, but these are matters in the end for the correctional authorities and not for me.

29I received the report of Christopher Kelly, a consultant psychologist, dated 26 May 2015.  He outlined your personal background including family history and your educational history.  Your parents’ separation when you were young, left you exposed to your father's occasional depression and violence.  You left home at 14 until the age of 17 when you met your partner and started living with her.  Mr Kelly outlines his assessment of sexual offending in his report.  You are said by him to be of low risk of future sexual violence and low risk of engaging in similar sexual offending behaviour.  I take this opinion into account.

30In my view, in this type of offending, the nature of unprotected sex on some occasions is an aggravating feature, especially when you have been asked not to ejaculate inside a person.  I take that factor also into account.  In arriving at an appropriate disposition, I have considered the issues which are raised for consideration by the guideline judgment in Boulten[1] in relation to community corrections orders and discussions in particularly recent cases of the effect of that decision.  The question posed by that guideline judgment for sentencing judges is one in which I need to question myself as to whether a community corrections order can fulfil all of the appropriate sentencing purposes and principles in a sentence.  In my view, it can, when placed in conjunction with a sentence of imprisonment.

[1]Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342.

31The correctional assessment found your risk of reoffending to be high according to them.  The assessing officer also expressed concerns in relation to your previous breaches of bail conditions and youth attendance orders.  However, the assessment found you substantially suitable and willing to participate in the requirements of the order, in particular the sexual offender program.  In view of this positive assessment, in conjunction with what I believe is an appropriate further period of imprisonment, it appears to be that the principles of specific and most importantly general deterrence are sufficiently addressed.  They must still play a significant role in the sentence from a punitive perspective as I indicated before.  In my view your youth and its requirements must, to some extent, give way to other sentencing principles, even if moderately in your case.  Is there an agreed amount of pre-sentence detention time?

32MS PRICE:  I recalculated it to be 135 days not including today.

33HIS HONOUR:  Thank you.  You have spent 135 days by way of pre-sentence detention, and I will note these days in the records of the court and they will be taken into account administratively by the correctional authorities.  As each of the relevant charges on the indictment meets the definition of sexual offence, on imprisonment for Charge 1 and 2 you will be sentenced as a serious sexual offender on each of the remaining charges.  A disproportionate sentence is not sought by the prosecution in this case.  Although it does not form part of the sentencing disposition, your conviction and sentence engages the obligations pursuant to the Sex Offenders Registration Act 2004 (Vic). This obliges you subject to mandatory reporting for life. These obligations are detailed and onerous, and they are subject to police control. I would advise you to understand and comply with such obligations, they will become operative upon your release from imprisonment.

34I will order that a biological order be taken from you for placement upon the DNA database pursuant to section 464ZF of the Crimes Act 1958 (Vic). On the occasion when a police officer will come to obtain a scraping from the mouth from you for that purpose which is not a painful procedure, if you do not consent to that procedure, then that authorised officer will be able to use reasonable force to obtain a blood sample from you. I will order a disposal of your phone, pursuant to the Confiscation Act 1997 (Vic).  I should also indicate that I have taken into account the submissions made by way of the sentencing snapshots of the Sentencing Advisory Council which was tendered.  There are a number of authorities which deal with current sentencing practices in relation to these particular offences.  In relation to each of them, you are convicted on each charge on the indictment as well as the summary offences.

35Please stand.  On each of Charges 1 to 8 you are convicted and sentenced to six months' imprisonment on each.  I will make Charge 1 the base sentence.  I order that one month on Charges 4, 5, 7, 8, 3 and 6, the last two being the use carriage service, be cumulative upon the base sentence.  I cumulate one month on Charge 2 and make one month cumulative on Charges 4, 5, 7, 8, 3 and 6. That makes a total effective sentence of 13 months.This will be followed by a community corrections order for a period of three years.  On the summary offences, for the bail contraventions, Charges 1, 2 and 16, you are fined $300 on each.  On Charge 6 of assault, you are fined $300 making a total of $1,200, with a stay of one month.

36But for your plea of guilty I would have sentenced you to 18 and a half months' imprisonment.  Take a seat. 

37It is possible from today to stipulate that the two months to be served on the Commonwealth sentences on Charges 3 and 6  will not begin to be served until the expiration of the state sentences.  That is, 11 months from now.

38MR MOORE:  That should suffice Your Honour, that pronouncement.

39HIS HONOUR:  Yes, now I just need to be more specific than that I suppose, 11 months from now, I will just work it out today being 4 June.

40MR MOORE:  What about the pre-sentenced detention Your Honour?

41HIS HONOUR:  Yes, there  is the calculation of the pre-sentenced days, which will obviously lessen that particular period.  This means the two months pertaining to the Commonwealth sentences will begin to be served immediately on the expiration of the state sentences.

42

MR MOORE:  Yes, Your Honour, the state sentences minus

135 ‑ ‑ ‑

43HIS HONOUR:  Minus 135 days.

44MR MOORE:  Yes, well that is what I was concerned about Your Honour.  His actual release date will be earlier than 4 May.

45HIS HONOUR:  Yes, rather than endeavour to come up with a date which may well be wrong, I will make it clear that the 11 months of the state sentence will be served first, less the 135 days he has already served.  At that point, the two months of the Commonwealth sentences will fall to be served to follow and then thereafter he will be on a community corrections order for a period of three years.

46MR MOORE:  In my submission that makes it abundantly clear, Your Honour.

47HIS HONOUR:  I hope that is the case.  I will just sign the new orders.

48MS PRICE:  May it please the court.

49MR MOORE:  Your Honour, I obtained what my instructor did a very handy article which Your Honour probably has access to.

50HIS HONOUR:  Is that Mr Peddley's article?

51MR MOORE:  Yes Your Honour.  Does Your Honour have that?  I have a copy here if you want it?

52HIS HONOUR:  I am happy to receive it, thank you.  Yes, I have signed those orders thank you.

53MS PRICE:  May it please the court.

54HIS HONOUR:  Thank you Ms Price, you are excused.

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