Director of Public Prosecutions v Lean
[2019] VCC 1770
•28 October 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00314
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| HUGH LEAN |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 October 2019 | |
DATE OF SENTENCE: | 28 October 2019 | |
CASE MAY BE CITED AS: | DPP v Lean | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1770 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Sentence – indecent act with a child under 16 – failure to comply with reporting obligations under the Sex Offender Registration Act – serious examples of offences – age disparity – grooming – threats not to disclose – relevant criminal history – early plea – facilitating the course of justice – genuine remorse – disadvantages and abuse in childhood – isolated adulthood – imprisonment with non-parole period
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E. Maguire | Office of Public Prosecutions |
| For the Accused | Mr J. Anderson | Tyler Tipping and Woods |
HER HONOUR:
1 Hugh Lean, in 2008, you took on the role as sponsor of a junior team in the Cranbourne Junior Football Club. As the sponsor, you were introduced to the team, which included the complainant or the victim in this case, Darren Acker.[1] He was then 12 years of age. As the sponsor, not only were you introduced to the team but you were present during their games and the team knew that you, as sponsor, were paying for their jumpers, for footballs and for pizza nights for the team as well as other meals occasionally for team members or their families and supporters. The cost to you of sponsorship was about $1,500 per year.
[1] Darren Acker is a pseudonym
2 That clearly gave you a special status with the team and with the club. You would attend games played by the team and you were entitled to be present and around the children. You became friendly with Darren Acker's father who was also involved in the club. He umpired and goal scored for the team and the two of you struck up a friendship after you had been introduced to him as the sponsor of his son’s team.
3
You did not have any children affiliated with the club, although you told
Mr Acker's father that your reason for sponsoring this team was because you had had a son who had died in a car accident and that son had previously played football. That was not true, you had never had a child.
4 From the time you became involved with the club you developed a social relationship with Darren’s father. You would often spend Wednesday nights and sometimes Sunday nights drinking with the father at the family home. More often than not, you would return to your own home to sleep, but there were occasions when you stayed over, usually because of the amount that you had had to drink.
5 As the 2008 football season developed, you began to spend more time in the company of the Acker family and, in particular, of Darren. You became a friend of the family, trusted to be in the home, trusted to drive the boys to and from football, to take them to McDonald's and out for other treats.
6 There was an occasion during the 2008 junior football season when you stayed overnight at Darren Acker's home and, at the children's request, their father allowed you to sleep on an air mattress on the floor in their bedroom. This was because you had become a popular figure to them and particularly to Darren Acker. They looked up to you and, as he said in his victim impact statement, he thought you were cool.
7 It was whilst you were permitted to sleep in the boys' bedroom after a night of drinking, that you sexually assaulted Darren Acker. He was asleep and woke up to discover you in his bed, holding him in a headlock so that he was restrained, with your hand over his mouth so he could not call out, and squeezing and pulling on his penis. You had pulled his clothing down. He struggled and resisted, but was unable to stop you. At the same time, you were thrusting your erect penis between his thighs and buttocks and pressing at his anus, although not penetrating him.
8 He could not break free of your hold. It was strong and you were much bigger than him. He was terrified. He kept on struggling and you told him to be quiet, and that it was all right. The assault came to an end, not because you decided you had had enough, but because you were interrupted. Darren's brother, who was sleeping in the same room, woke up and got up to go to the toilet. You loosened your hold a bit, enough for Darren to be able to break away and he ran out of the bedroom. He discovered, as he did so, that the door had been closed during the assault. Normally the boys slept in the bedroom with the door open.
9 Darren told his brother what had happened and asked his brother to stay awake to look after him, so that you would not do anything further. He was only a child and did not know he could do anything else. He went back to bed, too scared to go to sleep. His brother went to sleep, you had crawled over to Darren’s bed, put your hand over his mouth again and threatened him. You said, 'If you tell anyone, I'll come back for you'. You then went back to bed, and Darren did eventually fall asleep. When he woke in the morning you had left.
10 It would appear that there was some contact with the family after that, but your visits to the house became less frequent and you eventually ended your sponsorship of the team. You continued your association with the club and continued to go to games, including junior games.
11 Darren did not tell his parents for many years, but, as his victim impact statement revealed, what you did had a profound effect on him. He became a troubled, angry, naughty child. He stopped playing football. He disengaged from school and was difficult generally to handle. He was young and did not quite understand why he was acting badly for a long time. As he made clear in his victim impact statement, he was shocked when, many years later, you, out of the blue, visited his parents. He was still living at home and he was there with his partner and child. He was so frightened by the memories that came back to him, so frightened of you, he hid in the bedroom with his wife and child until you had left. Still he did not tell anyone.
12 Darren moved away from Cranbourne and, by 2017, he was living in another country town. He discovered that you had moved into the same town. That caused him to experience significant panic attacks and anxiety. After many years of not playing football, he had decided to play football again and seeing you brought back to him the memories of what had happened. It was as a result of that, and the desire to ensure that what happened to him did not happen to anyone one, that ultimately he made a complaint to the police in September 2017.
13 That started an investigation, which led to your being arrested and questioned in December 2017. Although you agreed to participate in a recorded interview with the police, you were less than frank with them about what had happened with Darren. You initially said that you had not had any financial involvement and that you had not sponsored the junior football team. You said that you bought pizza once for the team. It was only when confronted by statements from a past president of the club about your involvement as sponsor, and the extent of it, that you acknowledged the extent of your involvement with the club.
14 You denied having told Darren's father and other adults affiliated with the club that you were sponsoring the team and the club because you had had a son who played football and who had been killed in a car accident. You initially denied any sexual contact at all with Darren and denied the specific detail. You said you did not remember an occasion when you had slept on the floor in his bedroom. You said that you would not have ever put your hand over his mouth. You denied all of the touching that had been alleged by Darren saying, 'I wouldn't have ever touched him'. You then said that you did not remember doing it. Then you said you did not remember, but you might have done it. You said you might have been drunk. You then said, if you had done it, it was a wrong decision and again asserted that you did not remember and denied that you had ever told Darren that if he told anyone you would come back for him.
15 Despite those denials and the ultimate, grudging, partial admissions, you were charged soon after and, at the earliest possible opportunity, pleaded guilty. By the time this plea came on for hearing, I was told by Mr Anderson that you had fully acknowledged your guilt, accepted the truthfulness of everything that Darren had said as to what had happened and expressed considerable remorse for it.
16 This investigation into Darren's allegations also led police to enquire as to the truthfulness of what you had said, as a result of mandatory sex offender registration reporting obligations that had been imposed on you in late 2008, as a result of an unrelated child sexual offence. It is a condition of sex offender registration reporting obligations that, at the annual reporting to police, under the Sex Offender Registration Act, you must advise if you have any involvement or affiliation with an organisation that involves children and that clearly included the Cranbourne Junior Football Club.
17 You are also required to advise, at your annual sex offender registration reporting meetings, whether you were using an alias. At the time of this offending, you were using the name Aaron Smith, rather than your legal name, Hugh Lean.
18 You continued to use that alias in your continued involvement with the club, throughout 2013 through to 2016. When asked about that, you told the police that you were using the alias because you hated your first name. Although initially saying that everybody knew you by that name from 2000, you ultimately agreed when interviewed that you had only ever used that name in association with the Cranbourne Junior Football Club. When you were asked why you had not reported your affiliation with the club in your annual Sex Offender Registration Act reporting, you acknowledged it was because you knew that you were not supposed to be there.
19 As a result of this therefore, you have pleaded guilty to one charge of indecent act with or in the presence of a child under 16, which incorporates the different acts of touching of Darren on that night that I have detailed. You have also pleaded guilty to four separate charges of failure to comply with your reporting obligations under the Sex Offender Registration Act. One for each of the years 2013, 2014, 2015 and 2016. Those reporting meetings taking place on various days in November of each of those years.
20 The effect of your offending in respect of Charge 1 on Darren Acker, your victim, has been, as you now acknowledge and I accept in a heartfelt way, profound. He said in the victim impact statement that he was courageous enough to read aloud himself in court on the plea hearing:
'I became an angry child. I was kicked out of school. I would get angry at teachers and other kids. I lost trust in everyone. I had to tell my parents I was angry because I was being bullied at school, as I did not want to tell them what happened that night in my bed. I tried to go back to school, but it didn't work. I studied music which helped me to cope. I still have recurring nightmares about that. I stopped playing football after that night for the next eight years'.
21 He spoke about how fearful he felt and in ways, that we as adults might say, made him regress to the frightened child he was back when he was 12, on the night that you visited his parents. I have mentioned already the panic attacks and anxiety that he suffered after he realised that you had moved into the area that he had moved into. He said:
'I've never been able to hold a job for long because I get anxious when told what to do, because I felt like I did not get a chance to defend myself when Aaron abused me. I vividly remember him telling me to be quiet. I constantly hear these words all the time as they will play in my memory'.
22 Poignantly he said: 'I felt like he took a lot of me that night. My innocence was lost that night. I lost trust in everyone'. As I said to him after he read his victim impact statement, a lot might have been taken, but he has great courage, taking control of his present and his future and he is to be commended for that. He knows, I hope, and you know, I am sure, that he is in no way responsible for what happened to him that night and you bear significant responsibility for the troubled adolescence and young adulthood he has had as a result of the way he bore the burden of what had happened to him.
23 The charge of indecent act, Charge 1 on the indictment, is, as was conceded by your counsel, a serious example of a serious offence. The maximum sentence for the charge is ten years imprisonment. The seriousness is marked by the following matters.
24 The age disparity. He was only 12 and you were a man, a fully mature adult in your mid-50s. There was a considerable amount of grooming over a considerable period of time, including the way you became involved in the football club and took on the sponsorship of the junior team. That way, you became someone to whom the club and the boys in the team were beholden. You cultivated a friendship with the family. You told a false story of personal tragedy about your involvement with the football club in order to gain sympathy and the trust of the people at the club generally and Darren's family specifically.
25 You were welcome in the Acker family home. Your friendship with the father enabled you to gain the trust of the parents and the boys. You were trusted enough to drive the boys home on your own without their parents, to buy them treats, to sleepover and to be allowed to sleep in their room. Darren looked up to you.
26 It was a contact offence, skin on skin contact, as Ms Maguire so graphically put it. There was force and restraint involved in it. You were bigger and much stronger than Darren. It happened at night, when he was asleep in his own bed, a place where any child should feel safe. After you had finished, you threatened him with coming back if he ever told anyone what happened.
27 Also marking the seriousness of the offences is the fact that, by that time, you had already served a term of imprisonment for a charge of rape and indecent act with a child under 16, also a boy of about 12 years of age. When you were sentenced for the previous matter in 2002, the court was told that you had already undergone the Sex Offender Treatment Program, although you had denied any sexual interest in boys and the psychologist, who then assessed you, formed the view that you were not a paedophile with a sexual interest in boys. How wrong that was.
28 The Sex Offender Registration Act charges are, on the face of them, less serious offences, involving, as they do, a failure to comply with reporting obligations, not contact offending. They are what is described as a level 6 offence, punishable by a maximum of five years per charge, half the maximum penalty for the indecent act charge. But, again, as properly acknowledged by Mr Anderson, they are serious offences of their type, because they involve the very sort of acts that allowed you to inveigle your way into the junior football club, gain the trust of Mr Acker’s family and of Mr Acker himself, and so commit the offence that is the subject of Charge 1.
29 It is clear that you knew of your obligations under the Sex Offender Registration Act, and that you made conscious decisions, on each of those occasions in November of each of those years, to conceal from police your use of a different name or alias and your involvement with club, having, as it did, child members and children associated with it in its competition. By those breaches, by failing to tell the police of your use of a different name and your involvement with the club, the police were unable to assess and manage the risk that you might pose to children or monitor your behaviour.
30 The seriousness of this offending is also increased by the fact that, by the time you committed these Sex Offender Registration Act breaches, you had been sentenced for a further sexual offence. In 2008, you were sentenced in the Magistrates' Court for offering to enter an agreement for child sexual service with a 14 year old boy and, on that occasion, you were not imprisoned. You were instead placed on a 24 month community correction order, which included a direction that you participate in a Sex Offender Treatment Program.
31 So you had in fact done that Sex Offender Treatment Program as part of a community correction order. On the plea, it was put that you had, as a result, better learnt the effect of your behaviour on children who were your victims and yet, such insight as you had gleaned, did not stop you from continuing your involvement with the football club, watching junior as well as senior games, even if, as I was told, you no longer sponsored a junior team.
32 The fact that there is not one breach, but four in each of those four successive years, also clearly adds to the seriousness of those offences. It matters little, even if you have moved from the Cranbourne area by the time of the last reported breach and had not connected with a football club in the new area to which you moved. You did not reveal what you should have and you denied the police the opportunity to make those appropriate enquiries, conduct risk assessments or monitor you, in order to protect children who might come within your ambit.
33 It is clear therefore, and as was acknowledged by Mr Anderson in his thoughtful and measured plea submissions, that subject to considerations personal to you, just punishment, deterrence, both general and specific, and denunciation loom large in the sentencing mix.
34 You come before the court as a man of 66 years of age. Your childhood was marred by neglect. You and your nine siblings suffered from the inability of your parents to properly care for you, due to their alcoholism. Between the ages of 10 and 13, you were removed from your parents and placed into State care. A measure of how difficult that was, was that at the age of 13, you ran away, choosing to live with the father who had been unable to properly care for you up to the age of 10, as a better option than what State care was able to provide. Not surprisingly, your schooling was fragmented throughout your childhood. You left school at the age of 14 and, by then, I am told you had been to twelve different schools.
35 You have never married or, from what I understand, had a serious relationship. It is only in recent years that you have acknowledged a sexual attraction to boys. You report having been sexually abused yourself as a boy something, again, you have been only able to acknowledge in recent years. Despite the size of your family, you have had no contact with any family members since the death of your father and the suicide of an older brother both occurring in 1989.
36 I was told and I accept that, for most of your adult life, you have lived a lonely and isolated life. I am told that you wanted to but have been unable to develop and maintain friendships and, since your remand in custody in June of this year, you have had no visitors, whether in person or by telephone. You do not expect any for the duration of your sentence.
37 You have clearly therefore not had the advantages of a stable home life as a child, a good education, or social engagement, whether with family, friends or a partner. You may be less well-resourced than your more advantaged peers and therefore less able to acknowledge your sexual deviance, to seek support, or to access appropriate treatment.
38 You have no criminal history apart from the two sexual offence matters that I have detailed, with only the 2002 rape and indecent act being a prior conviction for the purpose of Charge 1, the indecent act charge. The ‘offer to enter an agreement for child sex service’ is a prior for the Sex Offender Registration Act offences. Therefore you have no recent or relevant criminal history. In 1972 and 1982, you were sentenced for property related offences, but I do not consider, having regard to the fact that they are so old and so unrelated to the sexual offending, that they have any bearing on the assessment of the gravity of this offending, or on the assessment of your prospects of reoffending or your prospects for rehabilitation. So apart from noting them, I set them aside and do not take them into account. If anything, they would show what I have already noted about the disadvantaged background and childhood that you had.
39 You report a solid work history, in manual, often physically demanding work. Although you report using alcohol as an adjunct to the commission of all three contact sexual offences, and alcohol may in that sense be properly regarded as a disinhibiting factor in respect of each of them, it does not appear your alcohol use is more generally problematic and it is not said that there is a connection between alcohol use and the offending. It is really that they sit side-by-side rather than as a causal or contributing factor as I understand it. But more importantly, alcohol abuse is not a problem for you and is not going to impair your prospects for rehabilitation generally.
40 You report no history of substance abuse, nor any psychological or psychiatric condition that might provide some context for your offending, serve to reduce your moral culpability or operate so as to make imprisonment more onerous for you than it would for somebody not so circumstanced. You do not report any ill health which may might make incarceration more onerous.
41 In fact, Mr Anderson relied, perceptively in my view, on the absence of reliance on any such matters as an indication of your unflinching acceptance of your responsibility, legal, moral as well as criminal for your behaviour.
42 Although you were not frank with the police about the sexual offending when you were first interviewed, I accept what I was told on the plea that you now accept and acknowledge the accuracy of the account given by Mr Acker. You have heard his victim impact statement read aloud in court twice. In February of this year, application was made for the matter to be dealt with in the Magistrates' Court and the victim impact statement was read out there before the Magistrate decided that the circumstance of the offending were too serious for it to be dealt with in that court and sent it to this court. You sat in court and listened to it read again today. I am told, and accept, that you have reflected on that victim impact statement since you first heard it in February this year and I accept you acknowledge the profound effect your offending has had on Darren Acker and that you are remorseful for it. By doing that, and by accepting the truthfulness and accuracy of the prosecution summary and Mr Acker's statement, you have openly acknowledged and vindicated his truthfulness.
43 When you were charged in December last year, the matter started in the Magistrates' Court. Although Mr Anderson acknowledged it is hard to understand why an assessment was made as to its suitability to be determined there, it was not until early this year that a decision was finally made to direct the matter to be heard in this court. You had already by then indicated your intention to plead guilty.
44 When the matter first came before this court in June of this year, no Judge was available to hear the plea and it became clear that the matter was going to have to be marked ‘not reached’ and a new date fixed for the hearing. I was told that Mr Acker was uncertain whether he could face coming to court again, having geared himself up for a sentencing hearing in the Magistrates' Court in February and then for a sentencing hearing in this court in June. It is a matter of great regret that the matter was not able to be heard then and that, for a third time, he had to gear himself up for a hearing.
45 When it became clear the matter was not going to be able to be reached in June of this year and it became clear about the impact that was having on Mr Acker, you offered what you could to accommodate his wish to have his victim impact statement read that day and to have the matter at least start. Ultimately, the court was not able even to do that. But that you were prepared to facilitate that so as to try and reduce the continued harm to Mr Acker of the matter hanging over his head and at a time when it was hanging over your head too because you were awaiting sentence. I take this as a further sign of your acceptance of responsibility.
46 It is also a significant indicator of your acceptance of responsibility that, on that day in June, you surrendered yourself into custody, although you had been on bail since being charged and, in the normal course of events, your bail would have been continued until the sentencing hearing. Again, I take that as an indicator of the acceptance of responsibility, moral as well as legal. And so those matters, together with the plea of guilty itself in the early stage at which it was entered, I take as significant evidence of remorse.
47 You are entitled to the full benefit of that early guilty plea. It has utilitarian value. It advanced the course of justice and, most importantly, it vindicated Mr Acker. It spared him the ordeal of having to relieve the events and to give evidence. And it spared him the indignity of being challenged on the truthfulness of his account, of being called a liar or, at best, a fantasiser. That is why, in those circumstances, I consider that to be powerful evidence of remorse that should properly be reflected in a reduction of the sentence otherwise appropriate.
48 Turning then to your prospects for rehabilitation. On the positive side, there is your remorse, the acknowledgement that you now make that you do have a sexual interest in boys and the acknowledgement that you now make of your own history of abuse, the absence of conviction in your adult life for any other offences, apart from the sexual offences that I have referred to, or relevant offences and the consequences of today’s sentencing, that is, the inevitability of the imposition of a term of imprisonment that will extend beyond today.
49 I take into account also as relevant on the positive side to your prospects for rehabilitation that there have been no contact offences for the past ten years. And I also take into account the fact that, consistently with your pleas of guilty and your surrendering yourself into custody, that you appear to have accepted your fate, keeping to yourself, working as a billet and understanding that you must see out your time in custody as best you can.
50 On the other hand, this is your third conviction for a contact sexual offence, and, in the ten years between this offence and now, you have committed four breaches of the Sex Offender Registration Act reporting conditions. Also relevant is your general social isolation, lack of connection with family or people in the community, absence of pro-social connection in the community and the acknowledged risk factor, although it seems to be a relatively minor one, of alcohol in respect of the contact offending. I consider therefore that the best way to describe your prospects for rehabilitation is guarded.
51 In my view, the needs of specific deterrence are met by the process that you have been through since questioned by the police the year before and the inevitable sentence that follows from this and the inevitable shaming that accompanies it, together with the fact that you are, by reason of this, as well as your previous conviction, subject to the restrictive conditions of the Sex Offender Registration Act for life.
52 As acknowledged, just punishment, general deterrence and denunciation require, despite those matters, the imposition of a term of imprisonment and one which extends beyond today.
53 Acknowledging the importance of protection of the community, in particular for Charge 1, where that is the primary sentencing factor I must take into account, it is essential in my view that you be assessed as soon as possible for suitability to participate in an another sex offender treatment program, one that can now take into account the acknowledgements, both of your own sexual interest and of your own sexual abuse history.
54 Because it appears you are a quiet person who keeps to yourself, you have done so in the community generally and you have been doing so, I understand, in custody, there is a risk that you will fly under the radar for the prison authorities. It is likely that other prisoners will be more likely to be noticed and may even put themselves forward a little more readily for eligibility for participation in programs and so I urge the Corrections authorities to ensure that you are properly identified and assessed as early as possible for suitability in a sex offender treatment program and given every opportunity to participate in one in custody.
55 I have structured the sentence so as to allow a significant gap between the head sentence and the non-parole period. It is clear that you are entitled to release at the end of your sentence and it is in my view essential that, on your release, you are reintegrated into the community in a structured and supported way. That is, with the benefits of parole and participation in a sex offender program whilst in the community to reinforce what hopefully you will learn in such a program during your time in custody. So again, I urge the custodial authorities and the Parole Board to consider your eligibility for release on parole, to give you structured support on your release, to maximise the prospect that you will not offend again, whether in a contact or non-contact manner and therefore to best ensure that the protection of the community is afforded.
56 Could you now please stand. Hugh Lean, on the five charges to which you pleaded guilty, you are convicted. On Charge 1, of indecent act with a child under 16, you are sentenced to imprisonment for a period of three years and six months. On each of Charges 2, 3, 4 and 5, the four charges of fail to comply with reporting obligations, you are sentenced to a term of imprisonment of twelve months. So twelve months on Charge 2, twelve months on Charge 3, twelve months on Charge 4 and twelve months on Charge 5.
57 I direct that three months of the sentences on each of Charges 2, 3, 4 and 5 be served cumulatively upon each other and upon the sentence on Charge 1. That makes a total effective sentence of four years and six months imprisonment. I direct that you serve a period of two years and six months before being eligible for parole. I declare that you have spent 122 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
58 Pursuant to s 6F of the Sentencing Act, I note that you are sentenced as a serious sexual offender in respect of Charge 1 and direct that that be noted on the record. Pursuant to s 34 of the Sex Offender Registration Act 2004, by reason of Charge 1 being a Class 2 offence and your previous convictions, I note you are subject to reporting for life. Pursuant to s 6AAA of the Sentencing Act, I declare that, but for your pleas of guilty, I would have sentenced you to a total effective sentence of six years and nine months, with a non-parole period of four years and six months. But the actual sentence is four years and six months with a non-parole period of two years and six months. Do the orders that I have pronounced reflect what I said I intended to do?
59 MS MAGUIRE: Yes, your Honour.
60 HER HONOUR: Arithmetic correct?
61 MR ANDERSON: Yes, your Honour.
62 MS MAGUIRE: Yes, your Honour.
63 HER HONOUR: Any further orders?
64 MS MAGUIRE: No your Honour, I don't believe so. No, your Honour.
65 HER HONOUR: All right, thank you all for your assistance. Could you remove Mr Lean please. Again, can I thank both counsel for your considerable assistance.
66 MR ANDERSON: Thank you, your Honour.
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