Director of Public Prosecutions v M.A.H
[2013] VCC 1145
•17 July 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-01694
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| M.A.H. |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 July 2013 | |
DATE OF SENTENCE: | 17 July 2013 | |
CASE MAY BE CITED AS: | DPP v M.A.H. | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1145 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Indecent assault – Offence between 1998 and 1990 – Accused then aged 14 -16 years – No other relevant prior convictions
Legislation Cited: Private Security Act 2004
Cases Cited: R v Boland (2007) 17 VR 300; Miller v The Queen [2011] VSCA 143
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D Hogan | Mr C. Hyland, Solicitor for Public Prosecutions |
| For the Accused | Ms S. Leighfield | Lewenberg & Lewenberg |
HER HONOUR:
1 Before commencing to sentence I indicate that I will refer to the name of the victim in this matter as JS, from time to time, and I might refer to her mother as JD. In doing so I mean no disrespect at all but do so in a bid to preserve some privacy for the victim. This will be further provided when the sentence is transcribed as mixed initials of the offender will also be used, again, this is in a bid to preserve the privacy of the victim.
2 M.A.H., you have pleaded guilty to one charge of indecent assault which, at the time you committed the offence, had a maximum penalty of five years' imprisonment.
3 The matter was opened as follows.
4 At the time of the offending, the victim, JS, who was your step sister, was aged between nine and eleven years and you were aged between fourteen and sixteen years.
5 The victim’s mother, JD, met your father, HL, when the victim, was about three years old. About two years after they met, they moved in together. JS lived with her mother and your father on a full time basis, whilst you stayed with them on some weekends and during school holidays.
6 On one occasion when you were staying at the victim’s home, you asked JS to come and play cards with you in your room. JS went to your room and you shut the door behind you. You asked the JS to lie on the floor and she did so. You knelt beside her and pulled up her top. You placed your hands on her chest and felt around her chest area. You then pulled down her pants and touched the victim on the outside of her vagina, underneath her underwear. JS felt uncomfortable and pulled your hand up to her chest. She had her eyes closed. You moved your hand back down to her vagina and told her to stay still and be quiet.
7 You said to her: “You want to make me happy, don’t you?” After a while, the victim pulled her pants up and went to get up. You pushed her back down to the floor and pulled her pants and underwear down. You fondled the victim’s vagina then moved your fingers inside her vagina. You moved your fingers back and forth inside her vagina. This hurt the victim and she felt uncomfortable. She moved around to try to get your hand away from her. She said: “Don’t.” You told JS to be quiet so that your parents would not hear. This gives rise to Charge 1, indecent assault.
8 I was told that the indecent assault occurred in the context of the events that followed. The victim moved away from you and pulled up her underwear and pants. She then went into her bedroom and you followed her and told her to shut the door, which she did. You then lay down on the floor and pulled your pants and underwear down, exposing your penis. Your penis was erect and you started to stroke it. You then asked the victim to touch your penis. The victim felt awkward, shook her head and said “No.” You then stroked your penis and told the victim to kiss it, but the victim did not. You continued to ask the victim to touch your penis. The victim then leaned down and touched your penis with one of her fingers. She pulled her hand away after a second and you continued to stroke your penis.
9 You then asked the victim if she wanted to make you happy and she nodded. You asked the victim to kiss your penis and she shook her head as she was feeling uncomfortable and awkward. She knelt down next to you and kissed the tip of your penis. You tried to push your penis inside her mouth and it scraped against her teeth. The victim jumped back and opened the door, then walked out of the room.
10 Following these events, you asked the victim to play cards again on a few occasions but she refused and walked away from you when you asked. When JS was thirteen years old, she told her mother that you had sexually abused her. She did not go into detail as she was embarrassed and ashamed. Let me make it clear that, although this is a common reaction of victims of sexual abuse, JS, like all other victims had nothing to be ashamed of. She had done nothing wrong, it was you alone who was the wrongdoer. The victim’s mother then told your father as to what JS had told her. JS also disclosed the offending to a school counsellor and in June 2011 she told her boyfriend about what you had done. In September 2010, she reported the matter to police. On your plea this morning, I was told by your Counsel that you were confronted with the allegation by either your father or your step mother or both and you expressed shock and were tearful. There was some suggestion that you may have apologised to the victim at about this time, if that is the case, neither you or the victim seem to recall this.
11 You voluntarily attended Moorabbin Police Station on 20 October 2011 where you were arrested and cautioned. You took part in a record of interview in which you denied the allegations.
12 JS has made a detailed Victim Impact Statement as to how your offending has affected her. I have read this and I am told that you have also read it. I take it into account in sentencing you. She speaks of your offending having robbed her of her childhood and severely impacting on the outcome of her adolescence and adulthood. Your actions towards her caused her confusion, fear, and anger. Your behaviour towards her has affected the way that she has responded to others, in particular men whom she has tried to please at her own expense. Her memories of what you did to her have pervaded throughout her life and tarnished occasions which would ordinarily be happy ones. Your behaviour has also impacted on her relationship with her mother, which has been most difficult since you offended against her. She feels that what you did to her has destroyed her emotionally and led to the many difficulties she has encountered in life, including running away when she was thirteen years old and living in youth hostels or on the streets when still a child.
13 She said that the incident has had a major impact on her confidence, self esteem, and trust, amongst other things. It has impacted on her relationship with other partners over the years and upon her relationship with her mother.
14 These are the very sad and real effects of what your offending has done to the victim. In sentencing you, however, I must take into account that you were at an age between fourteen and sixteen years and therefore lacked the judgment or maturity of an adult, although it appears that you had a good deal of control over the victim and were able to emotionally manipulate her in order to commit the offence. I make it clear that I sentence you only in relation to the offence to which you have pleaded guilty. The subsequent conduct is for the purposes of context only and I do not and cannot sentence you in relation to it. However, in sentencing you for the charged offence, I recognise the fact that your offensive conduct towards the complainant did not end after you digitally penetrated the victim’s vagina.
15 In all of the circumstances, your conduct is deserving of just punishment and denunciation. This is a serious example of indecent assault in that it involved penetration of the vagina of a very young girl. But another important circumstance in which punishment and denunciation must be considered is that when you offended you had the moral culpability of a child who may have been as young as 14 years old. I must be mindful of the fact that, had this conduct come to light at the time, you would have been dealt with in the Children’s Court, which has a different approach to sentencing than this court and focuses on the rehabilitation of the offender in a bid to ensure that they do not commit further offences in later years. You would have appeared there as a first time offender and on the basis of this, your age and your background, I agree with Ms Leighfield that it is likely that you would have been dealt with by way of a non-conviction probation order at that time. This is not to under rate the seriousness of what you have done, it is just the reality of the situation and something which I must take into account. Also, in that jurisdiction, principles such as general deterrence do not feature.
16 I do note, however, that as an adult, you denied the allegations which you now admit. As at 20 October 2011, when interviewed by police, it could not be said that you were remorseful for your conduct; nor at the time that you conducted a contested committal hearing, although it must be said that the hearing was conducted in the context of you facing a greater number of charges. However, it was not until a draft indictment was provided that as I understand it you expressed a willingness to plead guilty to the matter for which I now sentence you.
Prior convictions
17 You have no prior convictions, and only one subsequent matter which is of very limited relevance. I was told that when you were 19 years old you committed the offence of criminal damage which was in the context of you assisting your father who was being ejected from an hotel. You were fined $500 without conviction for that offence. Therefore, in the significant period between you committing the offence when you were a teenager and now when you present as a thirty-nine year old man, you have demonstrated that you are most unlikely to re-offend. You have used the time between the date of the offence for which I sentence you and now to rehabilitate yourself to a most significant extent, which is a matter I must and do take into account in your favour.
Plea of guilty
18 It could not be said that your plea of guilty was entered at the earliest stage although Ms Hogan for the Crown has fairly indicated in the circumstances you entered your plea at a relatively early stage. Those circumstances are that you were facing a number of other charges prior to the committal hearing. You ran a contested committal hearing on 13 September 2012, whereby the victim was subjected to fairly substantial cross-examination.
19 Whilst it is your right to conduct a committal hearing, again this does not bespeak remorse as at that stage. The matter resolved into a plea hearing in this court on 28 March 2013. By entering a plea of guilty, you have saved the witnesses, especially the victim, the time and trauma of giving evidence at trial and you have saved the community the time and expense of running a trial. In such circumstances, the law provides that you are entitled to a fairly substantial discount in the sentence that you would otherwise receive. In pleading guilty to the offence before me, you demonstrate that you are willing to accept responsibility for what you have done. I do hope that your plea of guilty also signifies remorse and that you now fully appreciate the impact of what you have done to the victim. I do note that in some of the character references tendered on your behalf you have expressed regret and shame for what you have done.
Background
20 I take into account your background. When you were three years old, your biological mother was diagnosed with Hodgkin’s Lymphoma which meant that you spent a good deal of time at your maternal grandmother’s house. Your sister was born when you were four years old and at about that time your mother became very unwell again and was hospitalised. Your father worked two to three jobs in order to pay medical bills and you were cared for by your maternal grandparents. Your paternal grandparents also took care of you from time to time and you moved between their home and that of various aunts and uncles. This resulted in numerous school changes over the next three to four years, which, unsurprisingly, was highly disruptive.
21 When you were five years old, you went to live with an aunt whose husband had recently died. Your father commenced building a home next door with a view to the family living there together when your mother recovered. This meant that you had to move school yet again. Sadly, when you were eight years old, your mother passed away. Your father sold the family home which he had built and you and your father returned to live with your paternal grandparents. This meant that you had to change schools once more. In late 1983, you father commenced a relationship with the victim’s mother and from 1984 to 1988, your father, the victim’s mother and the victim all lived together whilst your spent most of your time living with your paternal grandparents. I should also add that you spent little time as I understand it living in the same household as your younger sister. During the period in which you committed the offence, you were still moving between family homes.
22 In 1991, you repeated and completed Year 11, having had numerous disruptions to school during preceding years. During that year you lived with the family of a friend which served to provide the first stable home environment in a long time.
23 In that same year, you enlisted in the Army Reserve and undertook a twelve month training course before being selected for specialist commando training. I was told that this is the year that you were finally able to settle down and progress with your life. Of course, this is something that, like so many victims, JS has been struggling to do and you should be mindful of this. In September 1992, you were one of only four men to be awarded a Green Beret and are the youngest person, by a significant degree, ever to have achieved this accolade.
24 When you were eighteen years old, you commenced work in the security industry on a part time basis and continued with the Army Reserve part time. When twenty-one years old, you elected not to renew your military service and commenced to work for various companies in the security industry. In August 1988, your maternal grandfather passed away which led you to move in with your grandmother in order to help her with running the household as she was experiencing mental health problems and was suffering grief from the loss of her husband. You have been promoted through the ranks of positions available at various security companies, and in December 2006 you were promoted to general manager at a particular company. You completed a Diploma and Certificate Course concerning security and risk management.
25 When you were thirty-three years old, you went to Thailand on holiday and it was there you met your future wife. She has five children from a previous marriage. You married in Australia in November 2007 and you completed a Certificate in Small Business Management in December 2007. In August 2008, you purchased land that your wife’s family home was situated on in Thailand in order to protect the family home. Four of your wife’s children still live in the house with their great aunt with the fifth child being brought to live in Australia with you and your wife. While you are of the view that all of the children ought be with you and your wife, you have left it to them to decide where they wish to live and you and your wife regularly travel to Thailand and live with the others as a family. You provide emotional and financial support to your wife and her five children whom you consider to be your own.
26 In November 2009, your maternal grandmother passed away which proved to be a very emotional time for you due to the very close bond you had with her. She and her husband had been parent figures to you in many ways as you were growing up. I read from the written submissions that in October 2012, your father died from a heart attack.
27 In August 2011, you took over the running of the security company you had been with, and became owner of the company in March 2012. The previous owner of that company, a Ms Dain, has been very supportive of you over the years and was in court this morning for the plea hearing.
28 In May 2012, you advised Ms Dain of the criminal allegations against you, which resulted in the transfer of the business licence back to this person on a temporary basis in order to allow the business to continue operating. You did this as you were facing criminal charges which compromised your ability to carry out all functions as an operator of such a business. You then limited your role in the business in order to comply with licence requirements.
29 I was told that if you were to have a conviction imposed against your name then this would impact on your ability to work in the security industry. A finding of guilt against you already means that you are unable to hold a gun licence for the next twelve months and this has resulted in you losing a lucrative contract. I was referred to relevant provisions under the Private Security Act 2004 which indicates that if you receive a penalty in the nature of a fine in excess of 5 PU or a custodial sentence then you would be regarded as a prohibited person, which would mean that you would be forced to sell your business and also to work in a different industry altogether. I take these matters into account, as I must, although, of themselves, they are not determinative of what should happen in your case.
Findings
30 You have a strong work history, no prior convictions or subsequent matters, save one matter which as I have said is of very limited relevance, and you have strong family and friendship support. The character references tendered on your behalf speak highly of you. In the circumstances, I find that you are of otherwise good character and I find that your prospects of rehabilitation are very good. Further, whilst I place no weight on general deterrence because, as a child offender, and in view of the significant delay, I do not regard you as an appropriate vehicle for it. I place some, albeit minimal weight on specific deterrence in circumstances where you chose to deny the offence and contested this matter, albeit along with other matters, in a contested committal hearing. I do not regard you as a threat to the community as the offence which you committed which I now sentence you was an isolated incident which occurred some time ago and there has been nothing of relevance which you have done since.
Submissions on sentence
31 Your counsel submitted that in light of all of the matters in mitigation in your case, which could be seen as somewhat exceptional, an adjourned undertaking was appropriate. Ms Hogan for the Crown properly responded that this was an appropriate disposition and whether I imposed a conviction or not was a matter for me. This means that the prosecution do not submit that I must impose a conviction in your case, although it is open for me to do so.
32 Mr Hart as I said in discussion during the plea hearing, if you had committed these offences as an adult, there would be no question that you would be going to jail, indeed, the offence which you committed would now be regarded as the offence of rape or sexual penetration of a child under the age of sixteen, and far greater maximum penalties would apply. However, the situation is markedly different in your particular case.
33 In R v Boland (2007) 17 VR 300 at para 16, His Honour Appeal Justice Nettle said:
34 "…………Decisions of this court in R v Nutter [7] and R v Betta [8] recognise that where offences which have been committed while an offender is a child or immature and are not prosecuted until many years after the event; there is good reason to mitigate penalty, or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending. Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the offender’s moral culpability, take into account that what was done was done as a child, or as a person of immature years, and not as an adult or a person of greater maturity. Counsel for the appellant is also correct that general deterrence ordinarily has a lesser role to play in the sentencing of children and immature young people than in the case of mature adults, and that it is significant that the appellant has not re-offended in more than 24 years."
35 So that was what was said in the case of R v Boland which was adopted with approval by the Court of Appeal in another case called Miller v The Queen [2011] VSCA 143. I am bound by these decisions and apply the principles to your case, as I must.
36 In light of all matters put to me and having considered the strong matters in mitigation in your case, I am of the view that there are extenuating or exceptional circumstances which justify the court showing you mercy and in all of these circumstances, I do not see that there is any utility in recording a conviction against your name. You are now a contributing member of the community and I do not believe that it is in the interests of justice or in the interests of the community for that matter, to impose a conviction against your name for an offence which you committed as a child. This is not to underestimate the seriousness of what you did. But if you had been dealt with at that time, it is likely that you would have been dealt with most leniently with a view to your rehabilitation and without a conviction and that, by now, there would be no criminal trace of the offence against your name. However, in order to reflect appropriate punishment and denunciation as well as the seriousness of what you did, I intend to order that you pay a fairly substantial sum to a suitable charity.
Sentence
37 Please stand up Mr M.A.H.
38 In relation to Charge 1, without conviction and being satisfied that you are guilty of the offence of indecent assault I intend to adjourn this matter for a period of 24 months and release you upon giving an undertaking to attend before this court if and when called to do so during the next 24 months. I make as a condition of that undertaking that you are to be of good behaviour for the next 24 months and that you pay the sum of $1000 to Save the Children Australia Level 6, 250 Victoria Pde East Melbourne within 6 months of today’s date, that is, by 17 January 2014 at 4.00pm. Proof of the donation having been made by way of providing an original receipt of the payment must then be personally provided by you to the Criminal Registry of this court by no later than Friday 31 January 2014 at 4.00pm.
39 If you do breach this undertaking by committing further offences in the next 24 months or by failing to comply with the condition in respect of the donation, then you will be brought back and I will deal with you yet again for the offence and for breaching the undertaking, in all likelihood you will then be facing a more serious penalty than that which was imposed today.
40 Do you understand the terms and conditions of the proposed undertaking?
41 OFFENDER: Yes Your Honour.
42 HER HONOUR: Are you prepared to enter into that undertaking Mr Hart?
43 OFFENDER: Yes Your Honour.
44 HER HONOUR: All right, at this stage then I will have your counsel approach you and assist you with signing the undertaking, thank you. Thank you, so having signed the undertaking I now sign the adjourned undertaking order and I make the order in the terms that I previous set out.
45 I indicate pursuant to s.6AAA if not for your plea of guilty to this offence I would have imposed a 24 month CCO with conviction.
46 Take a seat for a moment please.
47 Is there anything further?
48 MS HOGAN: No Your Honour.
49 MS LEIGHFIELD: No Your Honour.
50 HER HONOUR: Thank you, we'll now adjourn.
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