Director of Public Prosecutions v Hyde (a pseudonym)

[2015] VCC 1350

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

RODNEY HYDE (A PSEUDONYM)

---

JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 September 2015
CASE MAY BE CITED AS:	DPP v Hyde (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2015] VCC 1350

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Porceddu
For the Offender	Mr A. Patton

HER HONOUR: 

1Rodney Hyde[1], you have pleaded guilty before me to one charge of indecent assault and one charge of incest.

[1] A pseudonym

2

The facts underlining your offending are as follows.  The victim in this offending was your then stepdaughter, Olivia[2].  At the time of the offending she was aged between nine and 18 years.  The offending took place between

1 March 1981 and 10 December 1990.  At the time of this offending you had married the victim's mother, who was a nurse, and were performing the role of at home stepfather to the victim and her young brother.  You and your former wife had met at a caravan park in Traralgon before marrying and moving into a house in the town. 

[2] A pseudonym

3In your record of interview with police you told them that whilst still living at the caravan park you manipulated the victim's hand to hold your erect penis for the purposes of masturbation, which you said may have occurred a few times.  This offending underlies Charge 1 on the indictment and I note is an offence that has been laid solely because of the information you gave police.

4It would appear from the summary of prosecution opening, which is exhibited with these sentencing remarks, that you began touching your victim's vagina when she was about 11 and the two of you living in a house in Traralgon.  The victim said you would then insert your finger inside her, the first time this happening after school at the house and occurring a few times a week.  She said she did not say anything to anyone at the time as she did not want to "wreck" everything, as her mother had just had a daughter with you and she did not want another broken family.  That offending is presented by the prosecution by way of an uncharged act.

5She recalled that you began penetrating her vagina with your penis from about the age of 14 or 15.  Most of the offending occurred whilst her mother was at work and in the bedroom you shared with your former wife.  She said it was generally quick.  Other times it occurred in the lounge room, or in the shed, or when you took her to watch Richmond play football in Melbourne and you would pull over on the way home and have sex with her in the car.  She estimated the offending occurred, that is the sexual intercourse occurred about once a week.

6Eventually the offending ended essentially because the victim's mother was informed by a friend about what was occurring although she had some suspicions before.  She confronted you and you made admissions and the marriage, unsurprisingly, then ended.  It appears there was a further confrontation between you and your former wife where you made full admissions, so that the fact of your offending had been admitted to by you and acknowledged since about 1990.

7The victim's mother in her statement says she spoke to you in 1992, however this would seem to be two years after the offending had ceased and it would appear the offending did cease because of the confrontation between yourself and your former wife.

8The victim impact statement makes for very distressing reading.  Part of the distress that is contained in these victim impact statements for any judge sitting in a plea of this matter, is that it is all too familiar.  The aftermath of your offending on your victim has been lifelong and is ongoing, although she is in her early 40s.  In her victim impact statement Olivia says that she spent her adolescence feeling as if she was the odd one out, there was something wrong with her, that there was something different.  She became obsessively involved in school work because this was something she could control.  This obsessive way of thinking, the need to control her surroundings has continued with her for the rest of her life.  She said that the offending led to "Feelings during puberty of not being good enough, shame, hating myself and my body."

9She went on to describe, "The feeling of being totally possessed by him caused me feelings of fear, confusion and frustration which now later in my life have turned into more hurt and grief at my loss of childhood and just how much I feel I have lost and missed out on."

10I note that in her statement your ex-wife refers to an incident where she discovered a letter that you had written to a boy who was interested in Olivia, warning him off and describing her as your girlfriend.  It would appear that the victim's feelings had been totally possessed are in some way borne out by this portion of material from your ex-wife's statement, in that it appears you did seem to regard her somewhat in that light.

11As is common with most victims of incest, Olivia has gone to experience and to continue to develop and to continue to experience anxiety and depression.  She has occasional panic attacks.  She has battled with alcohol to block out the hurt and pain.  She continues to struggle with obsessive-compulsive disorder, describing herself as a "stress head" who needs everything to be perfect.  She says she is scared of meeting new people and trying new things, "Because of my deep-seated fears of insecurity and vulnerability and a feeling of not having control and a fear of losing control in front of others."

12This is a feeling many victims of incest develop because, indeed, whilst they are subjected to that sort of sexual assault their lives are entirely out of control in an environment where they are being abused by someone with whom they are supposed to have a trusting relationship which renders them all the more vulnerable to what is occurring.

13She stated, "I experience problems with my intimacy with my partner, most of my friendships and relationships with my family members and siblings, despite having their continued love and support."  She said, "I have and do suffer sexual dysfunction as a direct result of the crime.  This personal side of my life causes myself and my partner much difficulty as I struggle to let go."  She states, "This remains a constant challenge to let go of old fears, memories and to learn to love myself and accept my body."

14

She stated that her general lack of self-esteem and insecurity prevented her from pursuing opportunities, both educationally and employment wise.  It seems quite clear from her record of interview she is an intelligent and

well-educated woman who continues to lament her inability to pursue career opportunities commensurate with that intelligence.  She now has the occupation of full time mother but constantly agonises over the likelihood that she will bring the difficulties developed as a result of the abusive relationship she had with you to bear on her parenting of that child.  This causes her further stress.

15Interestingly, and this is something that certainly I have noted with a number of victims of incest, she is terrified of therapy, a means by which she could resolve some of these matters, because of her fear of losing control if she were to discuss matters openly and that this then caused some breakdown in her life.  In other words, in order to survive, she has essentially had to develop a very rigid internal self-control system that affects enormous parts of her life and she has developed the usual tragic anxiety and depression conditions that arise from victims of this type of abuse.  I have gone into the victim impact statement in some depth as it is extremely important that you understand the very wholesale effect you have had on virtually every area of her life.

16I turn now to your personal circumstances.  You are now 59 years of age and came to this country aged nine, from Sri Lanka, with your parents.  You are the eldest of four boys.  Apparently when your family settled in the Latrobe Valley they confronted a very different scenario to that they had enjoyed in Sri Lanka, where it appears their circumstances were more affluent, where they had servants and you, yourself, suffered a dislocation as you had largely been raised by a maternal grandmother who was left behind after your family emigrated.

17

You told psychologist, Ailsa Brown, whose report dated 17 June 2015, was tendered on the plea, that you went on to grow up with a rather distant relationship with your parents, but completed Year 11 at school and life appeared at that stage to be otherwise reasonably normal.  You began an apprenticeship as a cabinet maker, which you were unable to complete due to a serious hand injury, and then worked as a process worker at APM for

12 years before being unable to cope.

18When you married the victim's mother, you were 21 and she was six years your senior.  The victim was only four at the time that the two of you married and moved into your home.  It would appear the first few years you were working at APM and she was working as a nurse, but you suffered some worsening of some sort of depressive condition which Ms Brown seems to think has been a constant for you for many years of your life and ultimately you had what you described to her as a nervous breakdown and which she described as probably a major  depressive episode and left your employment there and in fact there was some sort of suicide attempt around that time. 

19In any event, at the time of this offending, you were in the position of primary care giver to your stepchildren whilst your ex-wife worked.  It would appear the offending, in terms of the sexual intercourse being concerned, began about ten years after you began the relationship and married the victim's mother.

20Despite an early stable history of employment, following the demise of your relationship you have had only sporadic employment, it would seem likely due to your depressive condition which I accept over the years was worsened once knowledge of your offending emerged and was known and you continued in the intervening years to feel regret and remorse for what you had done, but also fear of consequences and this is a situation that has gone on for several decades.  I regard this as an unusual mitigatory feature in this case.  The courts are not usually presented with scenarios in offending of this

kind where the offender has been as forthcoming as you are.  It is quite clear that not only did you admit to this offending some decades ago, you were, notwithstanding on what I accept was described as being the case as described by the prosecutor as a sort of drip-feed in the record of interview where there was some minimisation of offending but, upon pressing, a very full, ultimately, confession of guilt, so that, in my view, delay has a particularly significant mitigatory factor in this case.

21You went on to form another relationship which lasted about ten years, but you and your ex-partner continue to reside together on a platonic basis.

22In relation to your employment, which continues to be sporadic, ultimately in about 2013 you undertook further training and in 2014 worked as a teacher's aide at a local Catholic school on a one-on-one basis with children who were intellectually, psychologically and physically disabled. 

23In a letter written to this court you spoke with some pride of the difference you had made in the life of the first student you worked with, a young autistic boy who came from an abusive home who, it appeared, flourished very much as a result of your care. 

24Unusually in this case I received a raft of references from family and friends, all who appear to be perfectly aware of your offending, but all who spoke in very praiseworthy tones about their contact with you, the sort of person that you are and their observations of you with your children, several of those persons having young children who have unhesitatingly been placed in your care despite their knowledge of your offending.  In particular, this relates to the two young children of your partner's son to whom you have played the role of grandparent, you being very greatly involved in their life, as their mother has apparently left them in the custody of their father. 

25You have, in the intervening years, thrown yourself into community work which, in your letter to me, you describe as partly being due to your desire to recompense in some ways for the damage you inflicted upon your then stepdaughter by your offending.

26You have been a coach of junior cricket teams and junior soccer teams and on a weekly basis have volunteered to sing at old persons' homes, at hostels and hospitals.  It also appears that once the confrontation took place with your ex-wife, the two of you then went to your parents to inform them about what had occurred. 

27I note that you have no prior or subsequent offences or involvement in criminal offending, and it would appear that this period of offending is the only criminal offending you have engaged in. 

28I accept that you are truly remorseful for your offending, as evidenced by your confession many years ago, both to your former wife, to your parents, to the very frank way in which you responded to the pretext conversation conducted by your ex-wife once her daughter had reported matters to police, by your extremely early plea of guilty which was entered at committal mention stage.  Your victim has been spared the ordeal of giving evidence and enduring cross-examination at any stage of these proceedings. 

29You also suffer significant ill health difficulties.  You suffer from diverticulitis, a very painful bowel condition which is exacerbated by stress and which requires constant medical attention.  It was described to me as being an excruciatingly painful condition, and I have received medical reports indicating that it may require surgical intervention in the near future.  You also have recently been diagnosed as suffering from an enlarged prostate which your GP feels requires specialist attention. 

30In addition, I accept the assessment of Ailsa Brown that you have probably been suffering from some sort of depressive condition for most of your life, or at least since adolescence, that this has increased over time and that, indeed, notwithstanding that you have escaped any legal consequences for your offending for some decades now, the matter has continued to weigh heavily upon you and that this has added to the depression and anxiety that Ms Brown has diagnosed you as developing early in your life.

31I also accept that you are absolutely terrified of going to gaol.  Testing by Ms Brown revealed a stress reaction really at the top end of the range, and indeed in your letter to this court you begged me not to take this course. 

32In sentencing, I do take into account what is an early plea of guilty.  I take into account your genuine remorse.  I take into account your otherwise impeccable history.  I take into account what I regard as a longstanding and sincere contribution to community activities.  I take into account delay, which in the circumstances of this case, in my view, have a more than usual mitigatory effect.  I take into account your depressive history which has been exacerbated by guilt over your offending over the years.  I take into account your anxiety and your medical conditions which, in my view, do attract Factors 5 and 6 of the Verdins' principles, so that the service of the sentence of imprisonment would be more difficult for you than for other prisoners.

33As to the reason for your offending, I accept, without really being particularly informed, you, yourself seem to have little insight as to why it occurred, that you were an immature man who married very young after having little in the way of personal relationships and that this may have had some part to play in the relationship you then forced upon your stepdaughter.  I take into account the comments of the Court of Criminal Appeal in Sherritt and Cole insofar as delay is concerned. 

34In my view, the mitigatory factors in this case have more than the usual application.  I accept you have excellent prospects of rehabilitation.  Sentencing for the purpose of specific deterrence, and community protection have little, if any, role to play in the sentencing exercise before me.

35At the end of the day, however, as I stated to you at the outset, sir, offending of this kind is so serious, involving, as it does, a breach of trust on a vulnerable victim, resulting almost always in lifelong debilitating conditions in their victims, that principles of punishment and general deterrence remain the primary factors to which any judge sentencing in this regard must have to play.  Because of the unusual mitigatory factors in this case, however, I propose to impose a head sentence which is of more than usual disparity with a minimum term that will apply in your case.

36Could you stand up, please, sir?

37On Charge 1, you are sentenced to ten months' imprisonment; on Charge 2, you are sentenced to five years' imprisonment, and I order that you serve a minimum term of two years.

38Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of seven years with a four year minimum.  Thank you.  Have a seat, please.

39MR PATTON:  As Your Honour pleases.

40HER HONOUR:  I also note that the references I received were from your partner with whom you have continued to live over the years and that there was no-one present in court to support you specifically, as I was informed by your counsel, because you did not want such persons present and distressed by the proceedings.  Thank you.

41Have you got those orders for me to sign?  Thank you.  I will just return the exhibits to you.

42MR PORCEDDU:  Thank you, Your Honour.

43HER HONOUR:  I am going to order that police take an intimate sample from you, sir, which will be just a swab in your mouth, and I need to inform you that if you refuse to allow that swab to be taken, police are entitled to use reasonable force in order to obtain it.

44I should also note further that it was the view of Ms Brown, and I accept this given your subsequent crime-free history, that you present as a negligible risk of reoffending in this way. 

45I need to inform you, you will be placed on the sex offenders register.  Your counsel will explain the consequences of that to you.

46MR PATTON:  Yes, Your Honour.

47MR PORCEDDU:  Sorry, how many years did you say, Your Honour?

48HER HONOUR:  It was five years with two year minimum.

49MR PORCEDDU:  Five years.  Thank you.  Sorry, I didn't hear that.

50(At this stage the court proceeded with another matter.)

51HER HONOUR:  You're excused if you need to be, Mr Patton.

52MR PATTON:  Thank you.

53HER HONOUR:  Mr Hyde can be taken down to the cells.

54MR PATTON:  Thank you, Your Honour.

55HER HONOUR:  Thank you.

‑ ‑ ‑