DPP v Hawkins

[2017] VCC 1943

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00253

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRENTON HAWKINS

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 December 2017
CASE MAY BE CITED AS:	DPP v Hawkins
MEDIUM NEUTRAL CITATION:	[2017] VCC 1943

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Pirrie
For the Accused	Mr A. Halphen

HER HONOUR:

1Trenton Charles Hawkins, you have pleaded guilty to ten charges of sexual penetration of a 16 or 17 year old child.  The maximum penalty for that offence is ten years' imprisonment.

2The prosecutor made application for the taking of a forensic sample from you.  The making of that order was unopposed.

3The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea (as amended) which was tendered as Exhibit A.  In brief, the circumstances are as follows.

4In 2002 you were a teacher at a Melbourne secondary college.  The two complainants were both Year 11 students.  They were both aged 16 at the start of the year and turned 17 during the year.  You had obtained your teaching qualifications in 2001 and this was your first full time teaching position.  You were employed as a physical education teacher and were aged 22 at the start of the year.

5You had a sexual relationship with the complainant in respect to charges 1 to 7 during the course of 2002.  It is further alleged that you had a sexual relationship with the second complainant in the first part of 2002.  Charges 8 to 10 are in respect of that complainant.  Neither of the complainants were in your class but came to know you because you were teaching at the school and were involved in various activities.

6The first complainant and you exchanged phone numbers.  You then started sending sexually themed messages to her and at one point gave her some lingerie as a present.  Sexual activity occurred several times a week.  On the majority of occasions you picked up the complainant in your car and you went to a quiet area where sexual activity would take place, including penetration.

7One night in 2002 you arranged with the complainant for her to spend the night with you at your house.  You helped her sneak into your bedroom.  You began kissing and you then fondled the complainant's vagina and inserted your finger into her vagina, Charge 1.  You also inserted your tongue into her vagina, Charge 2.  You then put your penis into the complainant's vagina, Charge 3.  You ejaculated onto her chest and you both fell asleep.  The next morning you woke and had a shower.  There was mutual touching.  You put your finger into the complainant's vagina, Charge 4, and then put your penis into her vagina, Charge 5.  You ejaculated into her vagina.

8Towards the end of 2002 the complainant went to a party after a Year 12 graduation ball.  You and the complainant left the party together in your car and drove to a car park.  You engaged in sexual activity.  You put your finger into the complainant's vagina, Charge 6, and then your penis into her vagina, Charge 7.  You then dropped the complainant back at the party.

9The second complainant got to know you after you both went on a school excursion.  You were next to each other on the bus.  You brushed her leg a few times and you ended up holding hands with the complainant, concealed by her jacket.  You were chatting and flirting.  You then had more contact and exchanged phone numbers.  On one occasion you arranged to go to a drive-in.  You picked up the complainant in the station wagon.  Sexual activity commenced.  You put your finger into the complainant's vagina, Charge 8, and then you put your penis into her mouth and she performed oral sex on you until you ejaculated, Charge 9.

10You arranged to meet the second complainant again and picked her up in the same station wagon.  Again sexual activity took place and you inserted your penis into the complainant's vagina, Charge 10.  You ejaculated inside the complainant's vagina but on this occasion you were wearing a condom.

11This offending came to light in 2015 as a result of a person contacting the Department of Education and Training.  An officer from the Department of Education and Training told police that there had been a report in relation to a teacher who was currently teaching at a secondary college.  There informant investigated the matter and contacted both of the complainants.  Each complainant said they were prepared to make a statement.

12On 6 June 2015 you were told that you would cease working at the school immediately.  You were interviewed by police on 10 December 2015.  You denied ever having had sex with the second complainant and denied other allegations put to you.  You also made similar denials in relation to the first complainant.

13You were charged on 23 May 2016.  There was a contested committal with both complainants being cross-examined.  You were committed to stand trial on
14 February 2017.  The trial date was set for 30 October 2017.  Resolution discussions took place from 1 September 2017 and resolution was reached on 20 September 2017 with you being arraigned and pleading guilty on
21 September 2017.

14Each of the complainants made a victim impact statement.  The first complainant read her victim impact statement.  She described, "the humiliation, anxiety, stress, pain, abuse, isolation and being taken advantage of at such a vulnerable point in my life by someone who is meant to be making sure things like this don't happen and be a good role model". She also described the impact on her life and said the offending occurred at a point where she was vulnerable and easily influenced.  There were difficulties in her home life.  She now considers that she was seeking approval from you in response to difficulties she had with her father.  She said that she has had great difficulties dealing with the trauma caused by your offending and has suffered from depression, anxiety and major trust issues.

15The second complainant also described the impact on her of the relationship with you.  She said it made her remaining year at school very emotionally difficult.  She said that she felt ashamed and embarrassed for many years but that as she grew older she realised that it was not her fault and that she should not have been put in that position by a teacher.  Ultimately she was able to tell her then boyfriend. She described the stress and anxiety following the initial contact that she had with the informant.  She said she felt isolated about her video link evidence although she clearly appreciates the support that she did receive.  She described the feelings of stress and anxiety that she had as a result of giving evidence at the committal.  She described her feelings that she had done something wrong and that she was a bad person and said, "but now I'm coming to the realisation that I am the victim and all of this hurt and burden I've been carrying is not my fault at all and should never have happened".

16Counsel made submissions on your behalf in writing and orally.  The Outline of Submissions on Plea was tendered as Exhibit 1.  Also tendered was a psychological report from Dr Matthew Barth dated 16 November 2017,
Exhibit 2, and a bundle of documents relied on, Exhibit 3.

17In sentencing you I have taken into account your personal circumstances, which were outlined by your counsel, and also summarised in Dr Barth's report.  You are 38 years old.  You were brought up by your parents in a suburb of Melbourne.  You commenced athletics at a young age and that has been a major focus of your life.  You had a world ranking in the under age category in respect of race walking over 10 kilometres and 20 kilometres.  You were heavily involved in athletics at the end of your schooling and successfully completed your VCE.

18In 1998 you started tertiary studies and in 2001 obtained a Bachelor of Education degree, majoring in physical education and information technology.  While studying you lived with your parents and worked in construction and labouring work.  You also held a part time position with Little Athletics as a coaching coordinator.  You commenced teaching, as I have said, beginning at the 2002 school year and continued until your employment was terminated in 2015.

19When you were 13 you were diagnosed with a mild form of spina bifida.  At about the age of 22 your doctor recommended that you no longer compete at an elite level unless you were regularly treated by cortisone injections to your vertebrae.  You decided to retire from elite competition but continue with athletics at club level.  As a result your training continued but was considerably reduced.

20You had two age-appropriate relationships prior to 2002.  The second relationship terminated about the time you started work as a teacher.  In 2011 you commenced a relationship with your current partner to whom you are engaged.  Since your employment as a teacher was terminated you have done some acting work and have also worked as a supervisor at a caravan chassis manufacturing plant.  You have no criminal record.

21In his report Dr Barth says that a review of your interpersonal adjustment indicates that you are a rather immature and dependent individual.  Dr Barth said these characteristics have impacted on your sexual behaviour.  He says that you have displayed "a poor understanding of the elements which constitute mature adult intimacy and a propensity towards pursuing relationships with females that are several years younger".  Dr Barth says that you viewed the complainants as being more mature than they were and as being able to initiate and control their experiences despite the obvious power imbalance.  He says you viewed them as being able to make decisions about these matters in the same way that an adult would and thereby justified your sexual experiences on the basis that they were consenting.

22Dr Barth says that you continued to lack insight into "issues pertaining to a position of power and authority you had over the complainants as a teacher at their school".  This is despite you having expressed remorse in saying to
Dr Barth, "At the time I didn't think it was an issue that they were that much younger than me, but I was entrusted with their care.  I had that power as a teacher". 

23Dr Barth says, "Mr Hawkins lacks understanding of the normative mental and sexual development of under-age females, often referred to as offence supportive cognitions, was intrinsic to his offending behaviour.  Throughout the assessment he was able to display some formative signs of challenging these distortions and reflecting on the negative impacts of sexual contact with under age females.  However, his understanding remains undeveloped and should be the focus of the specialist sex offender treatment program as soon as is practicable".  Dr Barth assesses your overall risk of sexual offence recidivism as falling in the low to moderate risk category.

24In terms of your mental health Dr Barth says you have had depressive and anxiety related symptoms of mild intensity but within normal limits and not warranting a formal diagnosis.  Dr Barth describes your difficulties in managing intimate adult relationships.  He says there are some concerns in relation to your sexual adjustment.  Dr Barth says you are in the early phases of gaining insight into your offending and that it should be noted that obtaining comprehensive insight typically involves a lengthy therapeutic process.  He says it is imperative for you to participate in special sex offender treatment programs.  He also suggests that any psychological intervention should focus on your interpersonal skills.

25Your parents were in court to support you, as was your fiancée.  In references your parents describe your closeness as a family and the support you have provided to them.  They also describe the impact that this prosecution has had on you.  They have purchased a country block with you where they hope to live with you and your fiancée and future hopeful family.

26In her reference your fiancée describes how regretful you are "for himself but mainly for the two girls affected".  She says that you have been very supportive to her and others.  She describes her hopes of getting married and starting a family together.  She is confident that you will not re-offend and describes the happy life you have together. 

27A further reference has been provided from a lady who knew you as a school student and then later as a colleague at the secondary college.  She says she is aware of the charges against you and that you have discussed the situation with her.  She describes your dedication and commitment to the schools, students and programs.  She says that you have made a "huge positive contribution to the lives of many students".

28Another teacher has provided a reference.  He knew you as a student and then as a teacher and described your qualities as a teacher.  He regards the offending as inconsistent with your professional and personal reputation.  He shared an office with you for ten years in your last school.  He says that he believes that the offending is completely out of character for you, given what he has seen of your interaction with students.

29There is a further reference from a former employer who describes you as being a very reliable and conscientious worker.  She also describes your love of animals and says that you have expressed your genuine regret and significant embarrassment to her.

30In sentencing submissions your counsel submitted that a sentence not involving imprisonment would adequately deal with the sentencing requirements.  Your counsel submitted that specific deterrence had less relevance in this case because of your lack of any subsequent offending and continued service as a teacher until 2015.  Your counsel also relied on the delay in this matter.  Your counsel submitted that you had very favourable prospects for rehabilitation given your demonstrated capacity to rehabilitate since this offending, together with your lack of any prior or subsequent criminal history.

31You have no psychological condition or substance abuse history and have support from your family and fiancée.  The references were also relied upon.  Your counsel also relied on your young age at the time of the offending.  Your counsel submitted that your plea of guilty ought to be taken into account for its utilitarian benefit and also as an expression of remorse.  Your counsel referred to you having expressed remorse to Dr Barth and to the people who provided references, albeit that remorse was interwoven with fear about the outcome of this matter.  Your counsel accepted that Dr Barth had identified various factors which could be addressed in a sex offence treatment program, which could be undertaken during a non-custodial sentence.

32Your counsel submitted that in the subjective circumstances of this case a sentence of imprisonment was not required.  Your counsel addressed the circumstances of the offending.  He acknowledged the breach of trust and abuse of position involved but emphasised the relatively small age difference.  He submitted that the objective seriousness of the offending meant that a non-custodial disposition was not outside the range.

33Your counsel accepted that general deterrence and denunciation were highly relevant sentencing considerations.  He submitted that your age and immaturity had a considerable role to play in the offending and your offending could be distinguished from that of an offender of more mature years.

34The prosecutor, in sentencing submissions, submitted that an immediate custodial sentence was the only appropriate sentence.  The prosecutor submitted that it should be taken into account that the complainants had been cross-examined at the committal and that you had limited insight and your rehabilitation needed to be viewed in the light of Dr Barth's comments.  The prosecutor addressed the need to protect children in such situations.  He emphasised that consent was irrelevant to your offending.  The prosecutor also argued that the victim impact statements describe significant harm and that it was clear that you had used your position as a teacher to engage in behaviours which he described as grooming.

35The prosecutor submitted that it ought also to be taken into account that the offending was prolonged and there were two complainants involved.  The prosecutor addressed a number of cases and particularly relied on the decision in Clarkson [2011] 32 VR 361. The prosecutor submitted that what was said in Clarkson about the presumption of harm in respect of sexual offending against children applied to this situation. 

36It is clear that the decision in Clarkson is concerned with offences against children under the age of 16.  That case stands for the proposition that consent in respect of children under 16 cannot be a mitigating factor.  The reason for that is because of the need to protect children.  The court said:

"The absolute prohibition on sexual activity with a child is founded on a presumption of harm".

37By analogy, I consider that that principle does apply to the situation of offending against 16 or 17 year olds where the child is under the care, supervision or authority of an offender, such as in this case.  In such circumstances consent is irrelevant because of the need to protect children of this age from the harm that may arise from having a sexual relationship in a situation where there is a clear position of trust and imbalance of power.  In that case, as in the case of sexual relationships with children under 16, consent is irrelevant.  It is clear also from that case that it is the circumstances under which the consent was given that the court must be assessed in order to determine the seriousness of the offender's conduct.

38Trenton Hawkins, your offending in this case was very serious.  Both of these children were under your care, supervision or authority because you were a teacher in the school they attended.  You engaged in flirting and seductive behaviour in order to obtain each of the girl’s consent to a sexual relationship with you.  Clearly, the gravamen of your offending was that you were a teacher in their school.  Otherwise the relationship that you had would not have been unlawful.  That is an extremely serious matter because Parliament has clearly intended that children be protected against sexual exploitation by people in positions of trust and power.  In such situations the effect of the law is that because of that position of trust and imbalance of power 16 or 17 year olds should not be entering into sexual activity with such a person despite having given consent.  That is clearly because consent is not freely given in the same way as it would be if the relationship were in different circumstances.

39The victim impact statements from the complainants in this matter were difficult to listen to and difficult to read.  It is clear that there has been considerable distress, both as a result of your offending and in the complainants having to revisit this matter.  They have demonstrated significant courage and it is to be hoped that with support and time they will be able to put these matters behind them.  The harm that each has suffered is different in some ways and that is typical of situations where young people are offended against.  Particularly in relation to the first complainant, she was clearly a vulnerable young person and your offending made her situation worse.

40Your offending must be strongly denounced.  General deterrence must be a very important sentencing consideration.  Others must understand that they cannot cross the boundary that is established by law and which ought to be a clear part of professional obligations.  A sentence of imprisonment is warranted for the purposes of denunciation and general deterrence, but there are a number of factors in this case which lead me to the conclusion that such a sentence ought not be imposed.

41The period of time between your offending and your situation now is particularly significant.  You were a very young man when this offending occurred, starting out in your teaching career.  It appears that you went on to continue your teaching career for many years.  From the references, you did so in a very positive and responsible way.  You have suffered a degree of extracurial punishment in that you lost your job and career as a teacher.  That is also significant.  During the time since this offending you have worked hard, both at teaching and in your subsequent employment.  You have formed a stable relationship.  You have not offended against any person and have not repeated your sexual offending despite being in a similar situation.

42In view of the contents of Dr Barth's report I consider that there is some risk of future offending and a need for you in personal terms to address various issues.  It is because of those matters that I consider that some work still needs to be done in terms of your rehabilitation. In terms of other matters such as work, lifestyle and employment, your rehabilitation has continued throughout the period.  You are no longer a young person but had you been sentenced at the time the offending was committed your rehabilitation would have been regarded as a very significant sentencing factor.  In this case I consider that your prospects for rehabilitation are very good provided that you undertake a sex offender treatment program.  It would also be of benefit for you to engage in psychological counselling.

43You are entitled to a significant discount because of your plea of guilty.  That plea of guilty has had utilitarian benefit despite the complainants having been cross-examined at committal.  I accept that your plea of guilty is an expression of remorse and that your insight has developed as a result of the instigation of these proceedings and the need for you to examine your behaviour. 

44I consider that the offending in this case is less serious than other cases where the age difference between the offender and the children was greater.  The matter of age differential is a matter which is frequently taken into account in consideration of the objective gravity of sexual offending.  The age of the young women involved is relevant only insofar as that there is an absence of an aggravating feature of the offending being against much younger children.

45I have taken into account that the charges on which I am sentencing you cover, broadly, two incidents in respect of each complainant.  In the circumstances of this case if it were open to me I would consider that the appropriate sentence would be a suspended sentence with conditions that you undergo a sex offender treatment program.  That is not a sentencing option available to me and in the circumstances of this case I consider that the only appropriate sentence which would cater for the relevant sentencing considerations of denunciation,  just punishment, general deterrence and specific deterrence and rehabilitation would be a lengthy community correction order.

46Can you please stand up, Mr Hawkins?  You have been assessed as suitable for a community correction order and the order that I would propose to impose if you consent is as follows:  The order would be for a period of four years. You would be required to do 400 hours of community work, be under the supervision of a Community Corrections officer and to engage in programs to reduce your re-offending.  You have had the core conditions of such an order explained to you.  It is important that you understand if you breach the order by further offending or not comply with the directions, you may be charged with breaching the order and brought back to court.  You may then be re-sentenced on this matter.  Do you understand what I have just said?

47ACCUSED:  Yes.

48HER HONOUR:  Do you consent to that order being made?

49ACCUSED:  Yes, I do.

50HER HONOUR:  Trenton Hawkins, on charges 1 to 10 you are convicted and sentenced to a community correction order for a period of four years with the conditions that I have outlined.  But for your plea of guilty I would have sentenced you to a term of imprisonment of three years with a non-parole period of two years.

51Sexual penetration of a 16 or 17 year old child is a Class 1 offence under the Sex Offenders Registration Act 2004. That means that you will be required to comply with the reporting conditions of that Act for life. You will shortly be asked to sign the community correction order and documentation confirming that you have received information about your obligations under the Sex Offenders Registration Act 2004.

52I have made the order for the taking of a forensic sample from you.  I have made that order because of the seriousness of the circumstances of the offending and that the order was not opposed.  I am required to tell you that you will be required to go into a police station.  A sample will be taken by a saliva swab, a buccal swab from your mouth.  You must cooperate with the police officers.  If you do not cooperate they are entitled to use reasonable force and to make you have a blood test.  I am sure that you will cooperate.

53Thank you.  Could you please take your seat?  Mr Halphen, would you be able to go with Mr Bastiannon and obtain your signature on a community correction order?

54MR HALPHEN:  Yes, Your Honour.

55HER HONOUR: And on the acknowledgment of the Sex Offenders Registration Act?

56MR HALPHEN:  Yes, Your Honour.

57HER HONOUR:  Thank you.

58MR PIRRIE:  Your Honour, I have the 464ZF orders here.

59HER HONOUR:  I have done - so that Mr Bastiannon printed some out so I have got those here, thank you, and there is nothing I need to repeat in terms of adding up or any of those things?

60MR PIRRIE:  No, no.

61HER HONOUR:  All right, yes, thank you.  I think we can close the link, can we?  Thank you.  They have gone?  All right, if there is nothing else from the Bar table?

62COUNSEL:  No.

63

HER HONOUR:  All right, thank you.  Thank you, Mr Pirrie.  Thank you,

Mr Halphen.

64COUNSEL:  Thank you, Your Honour.

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