Director of Public Prosecutions v Slater (a pseudonym)
[2019] VCC 161
•15 February 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBBIE KEITH SLATER (A PSEUDONYM) |
---
| JUDGE: | HIS HONOUR JUDGE WRAIGHT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Trial: 31 October, 1-9 November 2018 Plea: 14 February 2019 |
| DATE OF SENTENCE: | 15 February 2019 |
| CASE MAY BE CITED AS: | DPP v Slater (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 161 |
REASONS FOR SENTENCE
---Subject: Criminal Law - Sentence
Catchwords: Incest - rape - sexual penetration of a child under 16 - indecent act with a child under 16 – very serious offending – no relevant priors – demonstrated no remorse
Legislation Cited: Crimes Act 1958, Sentencing Act 1991, Sex Offenders Registration Act 2004
Cases Cited: Cheung v The Queen [2001] 209 CLR 1, DPP v Walsh (a Pseudonym) [2018] VSCA 172,
Sentence: Total effective sentence of 13 years, non-parole period of 9 years---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D O’Doherty | Office of Public Prosecutions |
| For the Accused | Mr R Lawson | Victoria Legal Aid |
HIS HONOUR:
Introduction
Robbie Keith Slater,[1] on Indictment H10050978.1 you have been found guilty of the following charges:
· 12 charges of committing an indecent act with or in the presence of a child under the age of 16, (Charges 1, 2, 3, 5, 6, 7, 8, 11, 12, 13, 19 and 20) contrary to s 47(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1991, which carries a maximum penalty of 10 years imprisonment;
· Two charges of incest (Charges 14 and 15) contrary to s 44(2) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1991, which carries a maximum penalty of 25 years imprisonment;
· One charge of rape (Charge 21) contrary to s 31(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Rape) Act 2007, which carries a maximum penalty of 25 years imprisonment;
[1] A pseudonym name
Further, in relation to Indictment H10050978.2 you have pleaded guilty to the following charges:
· One charge of sexual penetration of a child under 16 contrary to s 45(1) of the Crimes Act 1958 as amended by the Crimes (Amendment) Act 2000, which carries a maximum penalty of 10 years imprisonment (this is a representative charge); and
· One charge of committing an indecent act with a child under the age of 16 contrary to s 47(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1991 which carries a maximum penalty of 10 years imprisonment.
You have also admitted your prior criminal record.
Circumstances of the offences
In sentencing you on the trial indictment, I am bound by the principles in the case of Cheung v The Queen.[2] As such I must interpret the facts in a way that is consistent with the jury’s verdict. The jury rejected your evidence in which you denied sexually abusing the victims. You fall to be sentenced therefore upon the accounts given by the victims in relation to each charge that the jury has found you guilty of.
[2] [2001] 209 CLR 1.
The charges you have been found guilty of relate to two victims who are siblings; Kyle Hutchings[3] (born in 1994) and Thomas Hutchings[4] (born in 1995). The charges you have pleaded guilty to relate to Mary Hutchings[5] (born in 1992) and Stephanie Hutchings[6] (born in 1997) who are siblings of Kyle and Thomas.
[3] A pseudonym name
[4] A pseudonym name
[5] A pseudonym name
[6] A pseudonym name
The father of the victims, Bill Hutchings,[7] passed away in November 2003. In about June 2004 their mother Pamela Hutchings,[8] met you. You formed a relationship in about December 2004, and moved in with Ms Hutchings and the four victims. Later, in about 2007 you leased a farm house in Northern Victoria. After you had settled in the farm house Pamela Hutchings and the victims moved in with you for a period of time.
Indictment H10050978.1
Thomas Hutchings
[7] A pseudonym name
[8] A pseudonym name
Thomas Hutchings was approximately 12 years old when his mother Pamela Hutchings began the relationship with you. Shortly after you moved into the house with Ms Hutchings and the children, Thomas recalls waking up early one morning. He went into the lounge room and was watching television. You were present. He sat on the ground in front of you and you came up to him pulled his pants down and started playing with his penis (Charge 1). He did not tell anyone because he felt scared and shy. He gave evidence that you did this to him a couple of times every fortnight.
The next incident occurred again when Thomas was approximately 12 years of age. He recalled being suspended from school and when he arrived home, you were there. You told him to go into the bathroom to shave his hair because he had nits. Once he went into the shower you came into the bathroom and played with his penis in the shower. He stated that you were grabbing or groping his penis and masturbating it (Charge 2).
After the family had moved out to the farmhouse,Thomas recalled an incident where you gave him some alcohol. He believes he was playing on a PlayStation in his bedroom when you came in and gave him some beer. He then states that you came back into the room later, pulled his pants down and began masturbating him again. He stated in evidence that he did not like it and that you said to him ‘I pretty much do it in your sleep anyway’ (Charge 3).
Thomas gave evidence about another occasion when he was about 11 or 12 years old and was with his brother Kyle. Kyle was in the bathroom and you went and grabbed Thomas, took him into the bathroom and made Kyle and Thomas compare penises (Charge 8, Thomas; Charge 7, Kyle).
Kyle Hutchings
Kyle Hutchings was approximately nine or 10 years old when you moved in to the Hutchings home.
On one occasion when Kyle was about 11 years of age and sitting on the couch in the lounge room, you came over to him and put your hands down his pants and started touching him (Charge 5). Kyle gave evidence that that type of activity continued five or six times a month.
Kyle recalls that he was approximately 13 years of age when he moved out to the farmhouse. On one occasion Kyle was in the shower when you walked in and pulled the curtain back. He states that you touched his penis (Charge 6). You then brought Thomas into the bathroom which is where the incident occurred where you compared Thomas and Kyle's penises (Charge 7, Kyle; Charge 8, Thomas).
Whilst living at the farmhouse, Kyle gave evidence of an incident in the lounge room. He recalls a similar situation to what had happened previously. He states that you were masturbating him and got him to masturbate you. He stated that that went on until you ejaculated. He stated that at that time he was wanting to go to bed but you wanted him to ejaculate also. He complied as he said that that was the only way he could go to bed quicker (Charges 11 and 12). He states that the same activity went on five to six times a month.
In order to attempt to avoid you, Kyle began to go to bed earlier when others in the home went to bed so that he would not be left alone with you. However after this you started to come into his bedroom with a torch. He stated that you would shine the torch down at his genitals (Charge 13). He said after that you would take him into the lounge room where he states that you forced him to have oral sex with you. He stated that you would force his head down causing him to put his mouth on your penis (Charge 14). He then said that you would do the same thing back to him, that is put your mouth on his penis (Charge 15). He stated that that activity occurred on a regular basis until after the family moved out of the farmhouse.
On another occasion at the farmhouse while Kyle was having a shower, you came into the shower and got in with him. He stated that you entered the shower and started masturbating him and you made him masturbate you (Charges 19 and 20). Kyle stated that activity happened a few times but he could not remember how many.
When Kyle was about 14 or 15 the family moved back to town. Kyle did not have contact with you again until he was about 15 or 16. He was keen to earn some money in order to buy a PlayStation and approached you for some work. He worked casual part-time work in holiday times and on weekends. During the times that he worked for you he would occasionally stay at your property. You had a converted bus which was like a mobile home and the two of you would share that bus when Kyle would stay with you overnight. You would sleep in the double bed at the back while Kyle would sleep in his sleeping bag on the ground. Kyle stated that during the time he was working with you there was continual sexual activity between the two of you involving touching, masturbating and oral sex. These activities were uncharged.
Kyle did not then have contact with you for a period of time however after he left school at the age of approximately 17, he got in contact with you again in regard to getting more work. You gave him more work which involved going back out to the property and staying on the bus.
On one occasion whilst Kyle was staying overnight in the bus you woke him up and took him into your bed where there was further touching. He then states that you got up while he was lying on his back and lifted his legs up. You were then facing him. Whilst this occurred he said that you started masturbating yourself after which you attempted to insert your penis into his anus. Kyle gave evidence that he tried to push you away and said "no, no, no, I don't want to do this, please stop". He states that you persisted until eventually you ejaculated in him (Charge 21).
Indictment H10050978.2
In relation to the plea indictment concerning victims Mary Hutchings and Stephanie Hutchings, a summary of prosecution opening was tendered. The charges against each victim may be summarised as follows:
Mary Hutchings
Approximately three months after you had moved in with the family, Mary Hutchings told her mother that you had gone into her room and smacked her. Pamela Hutchings spoke to you about the accusation and you denied it. The children's uncle Andrew Hutchings,[9] also confronted you about it. Mary then told her mother that you had not really smacked her.
[9] A pseudonym name
In early 2005, a couple of months after you had moved in with the family, Mary was asleep on the top bunk in the room she shared with her sister Stephanie. Mary was aged 12. She woke up and saw a torch shining on her vaginal area. It was a hot night and she was wearing shorts and a singlet. She saw you standing there with the torch. You began pulling her pants down to just below her buttocks. Mary pretended to be asleep. You opened her legs and shone the torch on her vaginal area and put one or two fingers inside her vagina. You pulled her pants back up and left (Charge 1).
A couple of nights later, you came back into the girls' room. You did the same thing, but this time you touched Mary's vagina very softly as you were looking at it. Again, she pretended to be asleep. This became a regular occurrence, happening two or three times a week. Each time, Mary pretended to be asleep. She was about 12 years old at the time these incidents began.
On about twelve of these occasions, when you were playing with the outer lips of her vagina you put one or two fingers inside her vagina as you looked inside her causing her pain. Mary would turn her face away so you could not see her crying. Sometimes you would put money under Mary's pillow. You warned her many times not to tell anybody what had happened. These facts form part of Charge 1, the representative charge.
One night at the farmhouse you came into her room and started to pull her blankets down. This time she screamed out for her mother. Pamela Hutchings decided to leave the farmhouse house and took her children back to the house in town.
Stephanie Hutchings
After the Hutchings family left the farmhouse and moved back to town, they sometimes visited you at the farmhouse for the day or for a weekend. One of those visits took place when Stephanie Hutchings was in about Grade 6. Kyle, Thomas and Stephanie were playing in a boat in the dam, and you told Thomas that you would give him fifty dollars to push Stephanie out of the boat. Thomas pushed Stephanie out of the boat, and she had to go inside the house to change out of her wet clothes. You brought in some of your clothes for her to wear until her own clothes had been washed and dried. You left the room. Everybody else was still down by the dam.
Whilst Stephanie was changing in your bedroom, you walked back into the room. Stephanie had your jacket around her, and you opened the front of the jacket. You then touched her breast (Charge 2).
When she was about thirteen years old, Mary told her mother what was happening with you, but her mother did not believe her. Thomas Hutchings recalls overhearing Mary's complaint to their mother. He went to Mary later and told her that he believed her, and that something had happened to him too.
When Stephanie Hutchings was about ten years old she went to her sister Mary. Stephanie told Mary that you had ‘done it’ to her too. Mary told their mother, who took no action.
When she was in Year 7, Stephanie told a counsellor what had happened to her. Police became involved but Stephanie later told them that she did not want to go through with the matter.
Around Christmas 2009, Stephanie told her aunt, Rose Hutchings[10] and her friend that she had been abused. Stephanie said, ‘Rob did things to me.’ In early 2010 Rose Hutchings contacted the police at Wallan, but the matter went no further at that time.
[10] A pseudonym name
In June 2012, there was a birthday party at Rose Hutchings' house. Late that night, Mary told her aunt that you used to come into her bedroom at night and touch her.
Thomas was present during the conversation. He told his aunt, ‘Rob has done stuff to me too.’ Rose Hutchings asked Thomas to come to the police, but he felt unable to talk about what had happened to him and refused.
Rose Hutchings contacted the police in July 2012 and arranged for Stephanie and Mary to speak with them.
Ultimately, you were interviewed in relation to all the children and denied the allegations.
Objective seriousness of the offences
When looking at the totality of your offending in relation to the four victims, it can only be viewed as very serious offending. The offending occurred over approximately a seven year period. The four children were in a very vulnerable situation when you commenced the relationship with their mother. They had just lost their father in tragic circumstances. You soon moved in with the family and became a stepfather to the children. Not long after you moved in with the family you began to sexually abuse the children. Thus your offending represents a gross breach of trust against children who are entitled to feel safe and protected in your care.
Initially, the boys thought you were a reasonable man until you started to sexually abuse them. Mary on the other hand did not like you from the beginning and in the early stages made up a lie about you physically assaulting her. She ultimately admitted that that was a lie when other adults, relatives of Pamela Hutchings came to the house to talk about that incident. As a result, when Mary complained to her mother about your sexual abuse she was initially not believed.
While the jury has convicted you of a number of charges on the indictment, as noted above it is clear that your sexual activity extended further than the charges to which you have been found guilty. In relation to Thomas, Kyle and Mary your sexual assaults occurred on many other occasions, presented by the prosecution as uncharged acts.
In addition to the indecent act charges in relation to the four victims, you have also been found guilty of some very serious charges such as the representative penetration charge in relation to Mary, the incest charges in relation to Kyle, and the rape charge in relation to Kyle. The seriousness of the charges of rape and incest is also reflected by the maximum penalty which is 25 years imprisonment in each case.
In relation to the incest charges I note the recent comments of the Court of Appeal in DPP v Walsh (a Pseudonym):[11]
Incest involving a child is an appalling crime. It involves a breach of trust of the most fundamental kind, and an inexplicable abdication of parental responsibility. Just as seriously, it involves a cynical exploitation by the parent of the opportunity for sexual contact which being in that position of trust presents.[12]
[11] [2018] VSCA 172.
[12] Ibid at [1] (Maxwell P, McLeish JA).
Later in the same judgment the Court said:
Incest involving a child is, by definition, an offence of very high culpability, since it is so obviously contrary to every tenet of parental care for children and since every parent is taken to understand that sexual activity is absolutely prohibited.[13]
[13] Ibid at [33] (Maxwell P, McLeish JA).
In relation to the representative charge where Mary Hutchings was the victim, the charge was particularised as penetration of the vagina by a finger. Ms Hutchings stated in evidence that this occurred on a number of occasions when you came into her room and touched her on the vagina. Thus while the single incident of this charge is a serious crime of high culpability, the charge in this instance is aggravated when one looks at the context of the offending and the fact that the penetration aspect of the offence occurred approximately 12 times over the charge period.
The charge of rape is also a very serious charge in the circumstances presented. Kyle was 17 when that offence was committed and had already been subjected to sexual abuse by you over a number of years including the instances of incest (Charges 14 and 15) when he was in his younger teenage years.
Victim impact statements
Victim impact statements were tendered from Thomas Hutchings, Kyle Hutchings, Stephanie Hutchings and Pamela Hutchings and were all read on the plea. In general terms the statements of the children quite understandably reflect how they have been adversely affected by your crimes.
Thomas Hutchings states that he has a lot of anger because of what happened to him. He notes that because of the abuse, he has had trouble trusting people and dealing with people. He suffers flashbacks and he worries that the trauma he has suffered as a result of the offending may hold him back from living a happy and fulfilled life.
Kyle Hutchings states that he has felt confused and angry as a result of the offending. He notes that he has felt embarrassed and has feared being criticised. He feels that he failed to look after his siblings and felt powerless at the time.
Stephanie Hutchings feels betrayed by someone who was supposed to be her stepdad. She observes that before the abuse occurred to her and her family she did not realise that people could do such things, let alone be in her life. She is wary around males and has been reluctant to enter into any relationships.
Pamela Hutchings, the mother of the four victims understandably feels that you took advantage of her and her children's vulnerability at a time when she had just lost her husband and the children had just lost their father. She feels guilt in relation to letting you into her life and consequently she feels that she has let her children down.
Personal circumstances
You are now 56 years of age. The offending in this matter occurred when you were aged between 43 and 50 years.
You have lived most of your life in Victoria however spent a number of years living in South Australia in the 1990's. I note that your Criminal Record reflects offending in South Australia during that period and that you have no criminal history in Victoria.
You have run a successful gardening and landscaping business which was established in 2002. Your son, who worked with you, will now continue to run that business. Through the years you have employed local young people in the business.
You have three children and a stepson who has been part of your family since he was very young. All of your children are now in their thirties some with children of their own and most were in court supporting you. Further they each provided testimonials which were tendered on the plea.
The references from your children paint a very different picture of you than that told by the victims in this case. They attest to the fact that you are a caring and supportive father and grandfather and they were shocked to learn of the crimes for which you now fall to be sentenced.
A reference was tendered from your ex-wife Rose Roberts.[14] You and Ms Roberts separated in 2000. Ms Roberts states that despite some difficulties over the years you have always been there for the children and grandchildren. She too is in disbelief in relation to the charges.
[14] A pseudonym name
A reference was tendered from a client of yours in relation to landscaping work you completed at her property. She speaks highly of your professional and diligent approach to your work. She further states that you were of great assistance to her family when they were going through a difficult period.
I was not provided with any psychological material however it is clear that you remain very angry in relation to the allegations made by the victims which is reflected in your record of interview and by your comments from the dock during your plea hearing.
Sentencing considerations
In cases such as this general deterrence, just punishment and denunciation of your conduct are paramount sentencing considerations. While you do not have prior criminal convictions for this type of offending, you do have a prior history and as such in my view specific deterrence has some role to play. That said, I acknowledge that your prior history does not involve sexual offending and that the most recent prior matter was in 2000.
Mr O'Doherty who appeared on behalf of the Director of Public Prosecutions submitted that your offending was gross offending over a long period of time which has left a profound and devastating effect on the victims. As such he submitted that your offending calls for a significant term of imprisonment.
You ran a trial in relation to all the victims initially, and denied the offences. It is self-evident that at that time you demonstrated no remorse. Further, in your record of interview, you displayed anger and resentment towards the children, calling them liars. As noted above, during your plea hearing you spoke from the dock and again reiterated that the victims are liars. You have little insight into the nature of your crimes and as such at this stage, your prospects of rehabilitation must be approached with caution.
However, following the trial where the jury found you guilty of charges in relation to Kyle and Thomas, you resolved the matters in relation to Mary and Stephanie on the day of the retrial. In my view you should be given some credit for your pleas of guilty in relation to those two victims. Mary and Stephanie had already been subjected to questioning at committal and at the first trial. Given the way the evidence was led at the first trial, it would have been necessary for them to give evidence again at the retrial. As such your pleas of guilty have avoided that consequence, have saved the court time and therefore has facilitated the course of justice.
I also have regard where relevant to the commission of the uncharged acts as they provide a proper context in relation to the charged offences on the indictment. I also take into account that the charge in relation to Mary is a representative count.
As you are being convicted of two or more sexual offences, each of which you will be sentenced to a term of imprisonment, you fall to be sentenced as a Serious Sexual Offender pursuant to Part 2A of the Sentencing Act 1991.
Section 6D of the Sentencing Act provides that when sentencing you as a Serious Sexual Offender, I must have regard to the protection of the community as the principal purpose for which the sentence is imposed. In my view protection of the community is able to be achieved by the sentence that I will impose. Further, the prosecution does not contend for a disproportional sentence.
Sentence
Mr Slater please stand.
Robbie Slater on charge 21, rape, you are convicted and sentenced to 7 years imprisonment. This will be the base charge.
In relation to charges 14 and 15, incest with Kyle Hutchings, you are convicted and sentenced to 5 years imprisonment on each charge.
In relation to charge 1 on the second indictment, sexual penetration of a child under 16 in relation to Mary Hutchings, you are convicted and sentenced to 4 years imprisonment.
In relation to charges 2, 3, 11, 12, 19 and 20, indecent act with a child under 16, you are convicted and sentenced to 18 months imprisonment on each charge.
In relation to charges 1, 5, 6, 7, 8 and 13, indecent act with a child under 16, you are convicted and sentenced to 12 months imprisonment on each charge.
In relation to charge 2 on the second indictment, indecent act with a child under 16 in relation to Stephanie Hutchings, you are convicted and sentenced to 12 months imprisonment.
I direct that 12 months of the sentence on charges 14 and 15, 2 years of the sentence on charge 1 on the second indictment, 6 months of the sentence on charges 3, 11, 19 and 6 months of the sentence on charge 2 on the second indictment be cumulative on each other and on charge 21. That makes for a total effective sentence of 13 years imprisonment.
I direct that you serve 9 years imprisonment before becoming eligible for parole.
Further, as you have been convicted of class 1 offences, you will be required to comply with the reporting requirements imposed by the Sex Offenders Registration Act 2004 for the remainder of your life.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 98 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your pleas of guilty in relation to charges 1 and 2 on the plea indictment I would have sentenced you to 5 years imprisonment on charge 1 and 18 months imprisonment on charge 2.
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