DPP v Hudson (a pseudonym)
[2019] VCC 2123
•16 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRUCE HUDSON (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 December 2019 | |
DATE OF SENTENCE: | 16 December 2019 | |
CASE MAY BE CITED AS: | DPP v Hudson (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2123 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence following trial – Indecent act with a child under the age of 16 – Incest – Plea of guilty – Prohibited person possess imitation firearm.
Legislation Cited: Sentencing Act 1991; Sex Offender Registrations Act 2004
Sentence: 12 years and 2 months imprisonment with a non-parole period of 9 years imprisonment; 6AAA declaration on indictment Indictment J11916700.1B: 6 months imprisonment; 76 days pre-sentence detention; Sex Offender registration; Forfeiture order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. H. Shaw | Office of Public Prosecutions |
| For the Accused | Mr D Langton | Victoria Legal Aid |
HIS HONOUR:
1 Bruce Hudson[1], your trial on Indictment J11916700.3A containing 11 counts of indecent act with a child under the age of 16 and three counts of incest was listed on Monday, 1 October 2019 in the Reserve List. Your matter was not reached in the morning and was adjourned until 2.15 pm that day. You did not appear at 2.15 pm and a warrant was issued for your arrest. You were subsequently arrested and remanded in custody and your trial commenced before me on Wednesday, 3 October 2019. On Friday, 11 October 2019, a jury convicted you on all charges. Your plea was adjourned to 9 December 2019 for the purpose of obtaining plea material.
[1] This is a pseudonym name.
2 Upon your plea, you were arraigned on Indictment J11916700.1B and pleaded guilty to one charge of prohibited person possessing an imitation firearm. In addition, you admitted your criminal record. As at the time of your plea you had spent 69 days by way of pre-sentence detention.
3 In respect to the trial indictment, the 14 charges contained therein relate to seven incidents that are reflected in part in 11 charges that occurred in the months of April and May 2015 at Melton. The sixth and seventh incidents are reflected in Charges 12 through to 14 that occurred at Frankston in January and March of 2016.
4 In short compass, you met the mother of your victim in January 2015 and moved into the victim’s family home at Melton and became a part of the family unit in April of 2015. In November of 2015 the family moved to Frankston. In October 2016, a child, Simon[2], was born to you and your victim’s mother.
[2] This is a pseudonym name.
5 On an evening in April 2015, your victim was lying in her bedroom suffering stomach pains. You went into her bedroom and kissed her on the ear and sat on her bed, you asked your victim if she wanted to try kissing. She felt uncomfortable but said that she would try it. You kissed your victim on the mouth. (Charge 1, See Trial transcript pages 19-22)
6 One or two days after the commission of Charge 1, you asked your victim how she felt about the kissing. In the evening, you went into your victim’s bedroom. You got into your victim’s bed and kissed her. You then massaged her breasts and said, “You taste really good.” (Charge 2, See Trial transcript page 26 line 4) After a short time, you stood up, removed your clothes and told your victim to undress. She complied. You kissed your victim while masturbating yourself. (Charge 3, See Trial transcript page 31 line 21) You then rubbed your victim’s vagina before putting your fingers inside her vagina which the complainant found to be a painful experience. (Charge 4, See Trial transcript page 27 line 5) A short time later, you told your victim to masturbate you. She complied and used her hand to rub your penis. While this was happening you asked your victim if you could show her how to give you a blow job. (Charge 5, See Trial transcript page 34 line 17)
7 The following morning, you went into your victim’s bedroom and asked if she enjoyed the night before. While talking to your victim, you squeezed her breasts. (Charge 6, See Trial transcript page 35 line 10)
8 In May 2015 while still living at Melton, you were at home with your victim watching television. You were lying on a couch and asked your victim to lie beside you. Your victim reluctantly complied with your request and while on the couch you rubbed her breasts and kissed her. (Charge 7, See Trial transcript page 38 line 22) You then took your victim to her bedroom where you undressed yourself and your victim. You rubbed your victim’s vagina then penetrated her with your fingers. (Charge 8, See Trial transcript page 39 line 27) You then licked the outside of your victim’s vagina for a period of minutes. (Charge 9, See Trial transcript page 39 line 24)
9 On another occasion in May 2015, you once again went to your victim’s bedroom naked. It was at night and your victim’s mother and brother were asleep in their beds. You kissed your victim and blew in her ear. You touched your victim’s breasts. You asked your victim if she would like to try something new being rubbing your penis on her vagina. You then rubbed your penis on your victim’s vagina for a number of minutes. (Charges 10 and 11, See Trial transcript page 42 line 16) Shortly thereafter you left your victim’s bedroom.
10 Having moved to Frankston in January 2016, whilst the victim’s mother and brother were asleep in their beds, you went into the victim’s bedroom, lay on her bed and kissed her and licked her vagina. (Charge 12, See Trial transcript page 46 line 2) Shortly thereafter you put your fingers inside your victim’s vagina a number of times while you had your victim masturbate you. (Charge 13, See Trial transcript page 45 line 26)
11 Again on an evening in March 2016 after your victim’s mother and brother had retired for the evening after the family as a group had been watching television, your victim had fallen asleep on a couch, she awoke with you touching the outside of her vagina with your fingers. (Charge 14, See Trial transcript page 48 line 7)
12 It was a recurring characteristic of your offending against your victim that you performed other acts of sexual impropriety against her during the commission of the charged acts. Additionally, the victim swore that acts of the kind that found the charges upon which you were convicted occurred on a frequent basis. You are not to be punished for acts which do not found the charges upon which you were convicted but your victim’s evidence places your offending in context.
13 In respect to the offence of prohibited person possessing an imitation firearm, on 26 October 2017, you were arrested at your home at Frankston. Upon your arrest, police conducted a search of your home. During the search police discovered an imitation firearm inside your bedside table. At the time of the search you were a prohibited person because you were the respondent to an unrelated final intervention order that had been served on you and that was operative. When asked about the possession of the firearm in your record of interview, you stated, 'It’s not a firearm. It’s a cap gun. I have it in case someone breaks into the house.' As to your sexual offending you denied any impropriety towards your victim.
14 Tendered as Exhibit A on the plea was the victim impact statement of your victim, the subject of Charges 1 through to 14.
15 Your victim demonstrated great courage in reading aloud in court her victim impact statement. Her mother’s previous relationship was to a violent man who oppressed both the victim and her brother. You entered into a family the members of which were vulnerable. Initially your influence upon the victim’s mother appeared to your victim to be beneficial in that her mother became calm, relaxed and happy. Your victim was happy for her mother. In her statement, your victim described how she was confused and did not know what to do or who to tell about your conduct. She knew, however, that she had to keep it to herself in order to keep her family happy and safe.
16 As a result of your conduct, your victim’s mother has sided with you and your victim is now estranged from her mother and brother. Your victim lives with the family of a friend who now act as her foster family. Your victim described in her statement how she felt suicidal at times, however her extended family has supported her as has her foster family and this support has enabled her to carry on despite often feeling like an empty shell of a person.
17 Your victim has difficulty sleeping, she often wakes as a result of nightmares that are flashbacks of your conduct towards her. She has lost trust in people, is resistant to any form of touch and is terrified that one day she will meet someone like you and accordingly is resistant to letting anyone become close to her. At the time of your offending against the complainant, she was completing her Year 12 and because of the trauma that she suffered and her inability to concentrate, whilst she finished Year 12, she did so without an ATAR score. She struggled with meltdowns at school as a result of intrusive thoughts of your conduct towards her.
18 However, your victim is determined to move on and she is confident that she will be okay. She does not know what she will do but she is determined and declares that she knows that she will be happy.
19 Your victim was but a young teenager. You exploited your position of trust in the most appalling of ways. The consequences of your conduct on the victim have been profound. She has lost her mother and her brother. She is plainly psychologically affected by your conduct but is determined to be happy in the future. Despite your appalling conduct, she demonstrates both resilience and courage.
20 In respect to the offences which are the subject of Charges 1 through to 11, both inclusive, you were serving a community correction order imposed by the Dandenong Magistrates’ Court on 27 January 2015 in respect to an offence of contravention of a family violence final intervention order. The fact that you were undergoing a sentence whilst you offended against your victim in respect of Charges 1 through to 11 is an aggravating feature of that offending.
21 Tendered as Exhibit B on the plea were photographs of the imitation firearm found in your possession. It is a realistic imitation of a snub nosed .38 calibre revolver. The barrel appears to have fake rifling within it and the chambers contained in the cylinder have plugs in the face of the cylinder closest to the muzzle giving the impression that the revolver is loaded. The weapon in no way resembles nor could be accurately described as a 'cap gun'.
22 Mr Langdon of counsel who appeared on your behalf tendered as Exhibit 1 on your plea his sentencing submissions. You are presently aged 44 years. You grew up first in the Reservoir area and then moved to Cranbourne. You lived in Cranbourne from the ages of three to 23 years. You are the only child of your parents’ marriage, however, both your parents had children from previous relationships when they married. You attended Cranbourne High School but did not complete Year 9, leaving school at 15 years of age.
23 You have always had work and commenced working at the age of 15 in a steel fabrication factory as a spray painter. You have worked as a labourer, in retail, a maintenance worker, a forklift driver, bricklayer and at the time of your trial, you were working delivering buses interstate for the Irizar Group who are based in Hallam. Your only qualifications are forklift and heavy vehicle driver’s licences.
24 You commenced a relationship at 21 years of age and moved in with your partner at the age of 23 years. You remained together for 18 years and there are two sons of that relationship who are now aged 16 and 15 years respectively. I was informed on your plea that prior to your remand in custody there had been some contact this year with your two sons despite having had no contact with them since 2014.
25 Your own parents divorced when you were 21 years of age and your mother re-partnered. You father was a heavy user of alcohol and cannabis. He was verbally abusive towards your family and you described him to your counsel as controlling. Despite this, you were the primary carer for your father in the months prior to his death in April of this year from motor neuron disease.
26 Tendered as Exhibit 2 were two references, one from Mr Anderson Souza dated 8 November 2019. Mr Souza is the operations manager of Irizar Group, the organisation that you worked for from February this year until you were remanded in custody. You were described by Mr Souza in his reference as being a very hard and reliable worker who is always ready to stay back and help other people when it is needed. You are a punctual employee and in the short period of time that he has known you, he describes you as having a kind nature and a good sense of humour.
27 The second reference comes from Mr Mark Griffiths who has known you since 1998. Mr Griffiths describes you as 'the first person to stop and help as that’s the person I've come to know and trust.' Finally, tendered as Exhibit 3 were a number of certificates in respect of courses which you have undertaken whilst on remand awaiting sentence.
28 You have 10 prior convictions or findings of guilt from nine appearances commencing in November 1993 when you were aged 18 until 2015 when you were aged 39 years. Your prior convictions are principally for acts of dishonesty, although there is a firearms offence and the contravention of a family violence intervention order. You have a subsequent conviction in March of 2016 for intentionally causing injury to your former partner and the protected party of the family violence final intervention order which you breached and for which you were dealt with at the Frankston Magistrates’ Court in January 2015.
29 Within months of meeting your victim’s mother, you became part of her family and within days of moving into the family home at Melton, you commenced to offend against your victim. It is true that you ceased offending against your victim some months prior to her complaint. However, your inappropriate sexual attraction to your victim continued after your offending concluded and is manifest by the contents of Exhibit A on the trial, a text message trail. You have exhibited no remorse in respect to the offences of which you have been found guilty. I regard your offending as a serious example of offending of its kind. Incest is a repugnant crime. Despite your victim’s expressed intention to be happy and to continue on with her young life, I am in no doubt that she will carry emotional scars from your conduct for the rest of her life. Your breach of trust is profound as are the consequences of your conduct on your victim. Any sentence that I construct must reflect and apply the principles of general and specific deterrence and reflect the community’s denunciation of your conduct. The maximum penalty that applied at the time of your offending for indecent act with a child under the age of 16 years was 10 years’ imprisonment. The maximum penalty for incest was 25 years’ imprisonment. Accordingly, Parliament regarded and continues to regard this kind of offending as offending of the most serious kind. As to the imitation firearm the maximum penalty is 10 years’ imprisonment.
30 By this sentence, I must punish you, publicly denounce your conduct and deter you and others from committing this kind of criminal conduct. Taking into account the circumstances of your offending and its effects, together with your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
31 On Indictment J11916700.3A, on Charge 1, one month's imprisonment.
32 On Charge 2, three months' imprisonment.
33 On Charge 3, 12 months' imprisonment.
34 On Charge 4, six years' imprisonment.
35 On Charge 5, 12 months' imprisonment.
36 On Charge 6, three months' imprisonment.
37 On Charge 7, three months' imprisonment.
38 On Charge 8, six years' imprisonment.
39 On Charge 9, 18 months' imprisonment.
40 On Charge 10, three months' imprisonment.
41 On Charge 11, 12 months' imprisonment.
42 On Charge 12, 12 months' imprisonment.
43 On Charge 13, six years' imprisonment.
44 On Charge 14, 12 months' imprisonment.
45 I order that two years of each of the sentences imposed on Charge 8 and Charge 13, together with six months of the sentence imposed on Charge 9 and four months of the sentences imposed on Charges 3, 5, 11, 12 and 14 be served cumulatively upon each other and upon the sentence imposed upon Charge 4. This results in a total effective sentence of 12 years and two months' imprisonment and I fix a period of nine years' imprisonment as a period that you must serve before you will become eligible for parole. Please remain standing.
46 In respect of the offence of prohibited person possessing an imitation firearm contained in Indictment J11916700.1B I sentence you to three months' imprisonment and I declare pursuant to s.6AAA of the Sentencing Act 1991 that but for your plea of guilty I would have sentenced you to six months' imprisonment.
47 I declare that you have spent 76 days by way of pre-sentence detention not including today. In respect to the sentences imposed on Indictment J11916700.3A I declare that in respect of Charges 3 to 14, both inclusive, that you were sentenced as a serious sexual offender and I order that fact to be entered in the records of the court. I direct that you be subject to the provisions of the Sex Offenders Registration Act 2004 for life. You may be seated.
48 There was an application for forfeiture of the imitation firearm. I have signed that order. Are there any other matters that remain?
49 Mr Hudson, my associate will bring to you some documents that relate to your registration under the Sex Offenders Registration Act. You are to sign those documents.
50 HIS HONOUR: Mr Prosecutor and Mr Langton, are there any further matters that remain?
51 MR SHAW: I just want to check something, Your Honour, just for the calculations. So is the base sentence Charge 4?
52 HIS HONOUR: It is.
53 MR SHAW: And just in relation to the second indictment, that three months, is that cumulated on the rest?
54 HIS HONOUR: I have made no order for cumulation so it runs concurrently.
55 MR SHAW: It is concurrent, yes, Your Honour.
56 HIS HONOUR: Pursuant to statute.
57 MR SHAW: Thank you, Your Honour, I just wanted to check that. I've just tallied it up and I believe that it all adds up.
58 HIS HONOUR: No, that is perfectly proper of you. Are there any other matters?
59 MR LANGTON: There was a declaration as to PSD, I think, Your Honour?
60 HIS HONOUR: Yes, I have done that.
61 MR LANGTON: Yes, thank you.
62 HIS HONOUR: You may remove the prisoner.
63 HIS HONOUR: I want to thank counsel for their assistance throughout the trial and through the plea.
64 COUNSEL: If Your Honour pleases.
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