R v Antony Paul Hanney

[2014] NSWDC 13

District Court

New South Wales

Medium Neutral Citation:	R v Antony Paul Hanney [2014] NSWDC 13
Hearing dates:	19 February 2014
Decision date:	17 March 2014
Before:	Mahony SC DCJ
Decision:	Partially concurrent terms of imprisonment. For orders see [62]
Catchwords:	Sexual intercourse without consent; indecent assault
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Ibbs v R (1987) 163 CLR 447 Pearce v R (1998) 194 CLR 610
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Antony Paul Hanney - (Offender)
Representation:	V Morgan - Director of Public Prosecutions D Barron - Barron Law
File Number(s):	12/305362
Publication restriction:	Nil

reasons on sentence

Introduction

1. The offender has pleaded guilty to two offences. The first is an offence under s 61I of the Crimes Act 1900, namely, sexual intercourse without consent. It carries a maximum penalty of 14 years imprisonment, and a standard non-parole period of 7 years. The second offence is an offence of indecent assault pursuant to s 61L of the Crimes Act NSW. The maximum penalty is 5 years imprisonment and there is no statutory non-parole period.

1. The offences occurred on 30 September 2012. The offender was arrested on 2 October 2012 and has been in custody since that date. On 17 July 2013 he was committed for sentence from the Wagga Wagga Local Court, and the sentence hearing took place before me in Wagga Wagga District Court on 19 February 2014. At that time he had spent 1 year 4 months and 19 days in custody.

The Circumstances of the Offending

1. On 30 September 2012 the offender had been drinking all day. At approximately 8.45pm he left his house and drinking companions, and is said to have driven away.

1. At approximately 9pm a witness was entering the Calvary Hospital to visit his wife. The doors of the hospital are locked each night at 8pm and access can only be gained by a remote monitor within the hospital. When the witness sought access, the staff inside opened the doors for him. As he entered the hospital, CCTV footage from a camera at the front door of the hospital showed the offender sneaking into the hospital behind him.

1. A short time later at 9.16pm the offender was captured on CCTV footage in the theatre area of the hospital. He was shown walking along a corridor wearing theatre "scrubs" including a bandana on his head. A short time later at 9.30pm, nursing staff were alerted by a patient in room 16 buzzing for assistance. She had thought someone was trying to get into her room from a balcony area.

1. Some time before 9.30pm the first victim, patient X, who was 77 years of age at the time, saw the offender standing next to her bed. She was recovering from surgery to her vaginal area that day. She initially thought the offender was either an orderly or a doctor because of the surgical scrubs he was wearing. He pulled the sheet down and lifted the side of her pants up. He put his hand inside her vagina. The victim asked him on three occasions "What are you doing?" until he stopped. He caused her considerable pain. The offender left the room and after a few minutes the victim called out to another patient in the room and told her she thought she had just been assaulted. The other patient then buzzed for help.

1. The offender then went to another room on the same level of the hospital but in a different wing. In that room was patient Y, who had been admitted for rapid and uncontrolled heartbeat as well as other medical problems. She was on the verge of going to sleep when she became aware of the offender standing next to her bed. She believed the offender was a nurse. He asked:

"Are you alright?"

She said:

"Yes I'm alright."

1. The offender then went to the patient and felt her stomach. He put his hand up between her legs and put his hand on her vaginal area, outside her underpants. The patient then became alarmed and swung her arm at him, at which time the offender left the room. Patient Y then engaged the call light and spoke with staff about what had happened.

1. The offender was shown on CCTV returning to the theatre change room and a short time later walked past the nurses station where he spoke to staff, telling a nurse that he had worked at the hospital four years ago. He then left the hospital via the emergency stairwell at approximately 9.45pm. Nursing staff then contacted a supervisor who alerted security staff at the hospital. The offender was observed by security to leave the hospital grounds. Shortly thereafter nursing staff became aware of what had happened to patient X.

The Offender's Arrest

1. The offender returned to his home on foot. The next morning he set out to search for his car. That day he told his housemate that he could not find his car and did not know where it was. He had a conversation in which his housemate said to him "Can't you remember anything?".

1. The offender said:

"I remember walking through Calvary, so I must have come from around there somewhere."

1. A further search was made for the car including the area around Calvary Hospital, but it was not found. On the next day the offender attended at the Wagga Wagga Police station to report his car missing. Whilst there, he was arrested for the two offences. He said to the Police officer:

"I was at home, yeah, I will be interviewed, I have nothing to hide."

1. The offender participated in an electronically recorded interview. He denied having been at Calvary Hospital on the night in question and stated that he was at the time at home in bed asleep.

The Crown Case

1. The Crown case included documents upon which the Crown relied including the offender's criminal history and a pre-sentence report. It also included two victims' impact statements which I refer to below.

1. The offender's criminal history went back to November 1981 in the Children's Court. He had a number of stealing offences and in 1991 a high range PCA. There were other traffic matters in 1992 and a second high range PCA offence in 1999. A further conviction for receiving stolen property was recorded on 16 February 2000 and in 2002 and 2010 the offender had convictions for possessing prohibited drugs, namely, cannabis, for which small fines were imposed.

1. The pre-sentence report recorded that the offender was born on 17 June 1966. He was 46 at the time of the offending and was a single man. He had been employed as a cleaner for four years prior to the offences, and had a good work record in short-term unskilled labouring positions since leaving school when he was 15 years of age.

1. The offender had abused alcohol from the age of 16 and had used cannabis since age 14. He had suffered a post-traumatic stress disorder following an assault upon him in 2010.

1. The offender asserted that he had no recollection of his actions at the time of commission of the offences due to the high level of intoxication he had at the time. He expressed regret for his actions and accepted full responsibility for them. He was assessed as a medium risk of reoffending.

1. He was assessed as requiring supervision in relation to alcohol and drug abuse and sex offending.

1. The Crown also relied on the ERISP interview undertaken on 2 October 2012. In that interview the offender had maintained that he had no recollection of the circumstances of the offending. He consented to a DNA sample being taken and to his photograph being used for identification purposes. Otherwise, he said that he was, on the day in question, "pretty drunk" and he could not remember anything.

The Offender's Case

1. The offender tendered a report of Dr Richard Furst dated 2 February 2014. Dr Furst took a family, psychiatric and drug and alcohol history. According to his report, the offender told him,

"I was blind drunk. It was grand final day. A long weekend."

1. He denied any specific recollection of leaving his home, drinking at the pub, returning home, driving his car, entering the hospital, or sexually assaulting the victims.

1. The offender had reported to Dr Furst:

"I am very upset. I am appalled by my actions. I am not happy about it. I think about it every day. I wish I could reverse it. It is not like me. It happened out of the blue. It was a shock to me."

1. The offender is in limited association (LA) protective custody and has no access to rehabilitative programs. He was, however, open to engaging in sex offender treatment programs such as CUBIT and/or CORE.

1. The pre-sentence report noted that the offender had no previous charges or convictions of a sexual nature.

1. In answer to the question whether at the time of the offending he was suffering from a mental illness/intellectual disability that may have "materially contributed to his offending conduct", Dr Furst said that based on the available history, the offender was most likely suffering an "alcoholic blackout" (amnestic episode) at the time of the sexual offences. Dr Furst expressed the following opinion:

"In my view, his level of intoxication on the day in question mitigates against the seriousness of his actions, as he may well have acted on impulse and been more disinhibited, without necessarily thinking through the consequences of what he was doing."

1. The offender was assessed as being in the lower range in respect of the risk of future sexual offending. A number of programs were identified for him to undergo in order to improve his long-term prognosis, lower his risk of future sexual offending and lower his risk of recidivism generally.

The Offender's Evidence

1. The offender gave evidence that, consistent with the content of the presentence report and the report of Dr Furst referred to above, that he was appalled by his actions and that he wished that he could reverse it. He had also read the victims' impact statements referred to above and was terribly sorry and wished he could do something to relieve the victims' pain. He described his conduct as "disgusting" and that there was no excuse for it.

1. The offender gave evidence that he was not relying on the posttraumatic stress disorder that he was diagnosed as suffering in 2010. He had been the victim of a late night robbery and had been admitted to the intensive care unit at Canberra Hospital for three weeks following it. That experience had given him some insight in what it was like to be a victim.

1. The offender had stayed out of trouble whilst in custody on remand. He had joined a prayer group which had helped him. He acknowledged his prior criminal history and that in 1986 he had been sentenced to a period of 6 months imprisonment for breach of a community service order. He was released after 4 months on that occasion. In respect of the good behaviour bonds, he had never breached a term of those bonds.

1. The offender expressed extreme remorse for his actions and for the victims and their families. He was not using drugs and alcohol abuse as an answer.

1. In cross-examination he acknowledged the nature of the offending as outlined in the agreed facts sheet. He confirmed that he had no recollection of attending the hospital, notwithstanding that on 2 October 2012 he had provided a detailed account of some of his movements on the afternoon and evening of the day of the offences. He said that he had recorded what he had been told by others and was not 100 per cent sure.

1. When asked about the events at Calvary Hospital, he said that he was flat out recalling anything on that day. He recalled a courtesy bus that was taken to a hotel because his friend Peter had booked it at 4pm. It was put to him that he was making it up that he could not remember anything, which he denied. He said he had no recollection of that night, in fact, he stated that he had no idea that any of "this stuff had happened", otherwise he would have "caught the first train out of town".

1. It was put to him that his assertion that he did not remember any of the events of the evening was so that he did not have to explain his conduct. He did not accept that proposition and adhered to his evidence that he had no recollection of the offences.

The Offender's Submissions

1. It was submitted on behalf of the offender that the objective seriousness of the offending here was within the mid-range. An aggravating factor was that the victims were vulnerable, being elderly patients in a secure hospital, being a place where they believed they were safe. It was submitted that there was little planning involved, notwithstanding the way in which the offender had gained entrance to the hospital and his putting on of surgical scrubs.

1. It was submitted that despite the appalling nature of the offences, that the offender had no prior record for offences of this nature. To his credit, he acknowledged the serious nature of the offending, he had pleaded guilty to the offences at the earliest opportunity and was therefore entitled to a 25% utilitarian discount on sentence. That was not contested.

1. It was further submitted that to have access to appropriate sex offender's rehabilitation programs such as CUBIT he would have to be moved to a Sydney metropolitan gaol.

1. Further, he had acknowledged that he had offended, and the serious consequences to the very innocent victims. The need to incorporate rehabilitation into his sentence would lead to a finding of special circumstances.

1. It was submitted that notwithstanding the aggravating features, the attacks were of a very short duration, following which he left the hospital. The fact that he had attended the Police station by himself supported his contention that he had no recollection of the events. Further, his statement that had he been aware of the offending, he would have been on the first train out of town lends credibility to his assertion that he did not remember the offending behaviour. It was further submitted that his strict protection meant that he would be subject to a more onerous time in custody than other prisoners.

The Crown Submissions

1. The Crown acknowledged that the offender was entitled to a 25% discount for his early plea of guilty. The Crown referred to s 3A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act") and said there was a need for general and specific deterrence. The objective seriousness of the offending was above mid-range here because the offender had worked at the hospital previously and he was aware of the location of security cameras. His manner of gaining access to the premises was cunning and he had lied to the witness who he had followed inside. Once inside, he had gone to great lengths to avoid detection by dressing in surgical garb. There was a degree of planning here.

1. The victims were aged 77 and 86 respectively. It was submitted that it was unspeakably tragic that they were subjected to sexual assault at their age and stage in life, particularly in a hospital where they were being treated for not insignificant conditions.

1. There were aggravating factors that the Court had to take into account, as well as the victim impact statements.

1. In respect of the first offence concerning patient X, there was no consent to the sexual intercourse which had caused the victim a significant amount of pain and discomfort, particularly as she had had a surgical procedure to the vaginal area. The assault had caused her a great deal of pain, confusion and distress.

1. The indecent assault of patient Y was also serious in that there was a sufficient connection with the sexual organs and the patient was not in a position to protect herself. It was submitted by the Crown that the nature of the touching in the circumstances of the offending were such that the Court must regard them as above mid-range for offences of this kind. The Crown referred the Court to a number of authorities including Ibbs v R (1987) 163 CLR 447.

1. It was further submitted by the Crown that the Court would not accept the offender's remorse here as a mitigating factor. His assertion that he had no recollection of the offences should not be accepted. His lack of recollection was a chronologically convenient lie. The offender's expressions of remorse are, in all of the circumstances, disingenuous and the only appropriate penalty is a long custodial sentence.

Determination

1. In respect of the first offence pursuant to s 61I of the Crimes Act 1900, I accept the submissions made on behalf of the offender that the objective seriousness of the offending was within the mid-range of offences contemplated by that section. I further accept that an aggravating factor pursuant to s 21A(l) of the Sentencing Act was that the victim in each case was vulnerable, being elderly women who were patients in a secure hospital. In the case of patient X, she had undergone surgery of a gynaecological nature that very day.

1. I do not accept the offender's submission that there was little planning involved, having regard to the means by which the offender gained access to the hospital, and his subsequent subterfuge in using his knowledge of the hospital to access and put on surgical scrubs so as to masquerade as a member of staff.

1. In respect of the second offence pursuant to s 61L of the Crimes Act, I find that the objective seriousness of the offending was below the mid-range of offending contemplated by that section. The offending was still serious, but having regard to the fact that it involved touching of the underwear of the victim and given its short duration, I find that it is below the mid-range for offences of this kind.

1. I have also had regard to both of the victims' impact statements tendered by the Crown, and the impact that these offences have had on both victims' physical and emotional state. The statement of patient Y, which was read to the Court by her daughter, was a poignant exposition of the extent of the trauma suffered by patient Y. I note that there is no medical evidence against which to assess the victim impact statements, however, it is a matter of commonsense that the offences have had a substantial impact on both victims. I have therefore taken the victims' impact statements into account, but I make it clear that I have done so not to aggravate the offender's culpability.

1. I have also taken into account the offender's early plea of guilty and the 25% utilitarian discount which has been agreed that he is entitled to. That plea of guilty involves an element of remorse, and I accept the evidence of the offender as to his remorse for his conduct and the effect and impact that that conduct has had on the victims. I do not accept the Crown's submission that his expressions of remorse are, in all of the circumstances, disingenuous. Related to that question is whether the offender's lack of recollection of the offending conduct should be accepted. It is inconsistent with him attending the Police station to report his vehicle missing that he would have a consciousness of guilt in respect of his criminal conduct. I find that his state of inebriation and lack of recollection are by no means a mitigating factor to be taken into account in his favour.

1. I have had regard to the maximum sentence for each offence and the statutory non-parole period of 7 years in respect of the first offence.

1. I am also mindful of the totality principle involved in sentencing, and the need to recognise the principles set out in Pearce v R (1998) 194 CLR 610 by the majority at [45]. The maximum penalty in respect of each offence is an indication of the seriousness of the criminality of the offender's conduct here. As outlined above, it remains a yardstick (together with the statutory non-parole period in respect of the first offence), to be balanced with other relevant factors. The first of those factors is a need for deterrence to deter the offender, and others, from committing offences of this kind in the future. The offender's conduct could be described as somewhat bizarre, but was otherwise predatory in the sense that it targeted vulnerable and elderly patients. Although the victims themselves seem to have been randomly selected (as opposed to being specifically targeted), deterrence, both general and specific to the offender must loom large in the sentencing process.

1. The purposes for which a Court may impose a sentence are set out in s 3A of the Sentencing Act as follows:

"(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and community."

1. I am satisfied, pursuant to s 5 of the Sentencing Act, having considered all possible alternatives, that no penalty other than imprisonment is appropriate in these circumstances.

1. I have also had regard to the fact that this is the first offence of a sexual nature that the offender has been convicted of.

1. Section 54A(2) of the Sentencing Act provides as follows:

"54A(2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the Table to this Division that, taking into account only the objective factors effecting the relative seriousness of that offence, is in the middle of the range of seriousness."

1. S54B provides as follows:

"54B Consideration of standard non-parole period in sentencing

(1) This section applies when a court imposes a sentence of imprisonment for an offence, or an aggregate sentence of imprisonment with respect to one or more offences, set out in the Table to this Division.

(2) The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender.

(3) The court must make a record of its reasons for setting a nonparole period that is longer or shorter than the standard nonparole period and must identify in the record of its reasons each factor that it took into account."

1. In respect of the first offence pursuant to s 61I, having regard to the matters set out above, I propose to impose a nonparole period of 3 years and 6 months imprisonment. That term is to be backdated to commence on 2 April 2013 and will terminate on 1 October 2016. You will therefore become eligible for parole on 1 October 2016.

1. I find that there are special circumstances pursuant to s 44(2) of the Sentencing Act, given the offender's need for intensive rehabilitation during his period in custody and upon release on parole. There is also to be some partial accumulation of sentences which is of itself a special circumstance. I therefore set the balance of the sentence to be a term of 2 years, to expire on 1 October 2018. The total sentence in relation to the first offence will therefore be 5 years and 6 months imprisonment.

1. The time that the offender has spent in custody will be taken into account. As at today, that period I have calculated as 1 year 5 months and 15 days.

1. In respect of the second offence, I sentence the offender to a fixed term of imprisonment of 18 months to commence on 2 October 2012, and to be served partially concurrently with the sentence in respect of the first offence. That term will expire on 1 April 2014.

Orders

1. I make the following orders:

(1)   Count 1 - Convicted

For the offence of sexual intercourse without consent pursuant to s 61I of the Crimes Act, I sentence the offender to a term of imprisonment by way of a non-parole period for a period of 3 years and 6 months commencing on 2 April 2013 and expiring on 1 October 2016. I fix a balance of sentence of imprisonment of 2 years, expiring on 1 October 2018. The total sentence of imprisonment is 5 years and 6 months.

(2)   Count 2 - Convicted

For the offence of indecent assault pursuant to s 61L of the Crimes Act, I sentence the offender to a fixed term of imprisonment of 18 months commencing on 2 October 2012 and expiring on 1 April 2014.

(3)   Your parole eligibility date is 1 October 2016.

(4)   The total sentence for both offences is 6 years.

(5)   I recommend the offender be placed in a custody based intensive treatment program for sexual offenders whilst serving his sentence, together with other relevant rehabilitation programs.

(6)   Exhibits returned forthwith.

Decision last updated: 17 March 2014