R v Hampden (a pseudonym) - [2021] NSWDC 195

District Court

New South Wales

Medium Neutral Citation: R v Hampden (a pseudonym) [2021] NSWDC 195
Hearing dates: 9 April 2021
Decision date: 26 May 2021
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Aggregate term of imprisonment of 12 years with a non parole period of 9 years.

Catchwords:
CRIME - SENTENCE - aggravated sexual assault with a victim under 16 years - intentionally sexually touching a child - inciting the commission of aggravated sexual assault with a victim under 16 years of age.

Legislation Cited:
Crimes Act 1900 (NSW): ss61J; 66DB(a); and 61J and 80G.

Cases Cited:
Taylor v R (1978) 45 FLR 343; WC v R [2016] NSWCCA 173

Category: Sentence
Parties:
Regina (Crown)
Hampden (a pseudonym) (Offender)
Representation:
Ms Macdonald (ODPP Campbelltown)
Mr Townsend (Legal Aid Campbelltown)

File Number(s): 2020/153609
Publication restriction: Statutory non publication and suppression orders of the names of the offender and the victims and anything else which might identify any of them, directly or indirectly.

Mr Hampden (a pseudonym), you appear for sentence today in relation to nine principal offences involving two victims who were respectively your daughter and your niece.
Four of the principal offences are aggravated sexual assault with a victim under 16 years of age. These are sequences 2, 5, 6 and 15. Each of these offences involves a contravention of s61J of the Crimes Act. The maximum penalty for each offence is 20 years imprisonment. There is a standard non-parole period for each offence of 10 years imprisonment.
Four of the principal offences are intentionally sexually touching a child. These are sequences 7, 9, 12 and 13. Each of these offences involves a contravention of s66DB(a) of the Crimes Act. The maximum penalty for each offence is 10 years imprisonment. There is no standard non-parole period.
One of the principal offences is inciting the commission of aggravated sexual assault with a victim under 16 years of age. This is sequence 16. This offence involves the combined operation of s61J and s80G of the Crimes Act. The maximum penalty for this offence is 20 years imprisonment. There is a standard non-parole period of 10 years imprisonment.
In addition to these nine principal offences, you have asked me to take into account, in relation to sequence 5, four matters on a Form 1 which I have certified. Those matters are sequences 1, 3, 4 and 10 and each is a matter of intentionally sexually touching a child.
Before I proceed further, I note that there is a transcriptional error from the hearing on 9 April 2021 which requires immediate correction. The words transcribed at T19:20 should be attributed to Ms Macdonald who appeared for the Crown – not to me.
The facts surrounding the principal offences and the matters on the Form 1 are contained in an agreed statement of facts. Recast by me as to style, but not substance, they are as follows.
As at early 2020, you were 40 years old and you were living in a Sydney suburb.
Also in that house was your wife; your daughter, Kathleen (a pseudonym), who was aged 12; another daughter, Margaret (a pseudonym), aged 11; your niece, Ella (a pseudonym), aged 13; and a friend of your wife, who was aged 24.
On a night somewhere between February and March 2020, you had been drinking alcohol. You went to Kathleen’s bedroom to say goodnight to her. When you entered her room, she was asleep. You lay down beside her and pushed your penis against her clothed bottom. Kathleen moved her body away from you; however, you moved closer and, again, pushed your penis up against her clothed bottom. After three to four minutes of this, Kathleen got up and walked out of the bedroom to go and sleep with her mother.
It is these facts which constitutes one of the offences of intentionally sexually touching a child (sequence 12).
On another occasion, this time between April and May 2020, you again entered Kathleen’s bedroom to say goodnight to her. Again, you had been drinking alcohol. You said goodnight to her, and she said “I love you” to you. You then lay down beside her and started kissing her on the side of her neck. You then put your hand underneath Kathleen’s shirt and bra and started aggressively grabbing her breasts. Kathleen asked you to stop, but you didn’t.
You continued touching Kathleen’s breasts for approximately 3 minutes before she kicked you in the thigh area. You then got angry and left her room.
It is these facts which constitutes another principal offence of intentionally sexually touching a child (sequence 13).
I pause to observe that the agreed statement of facts states that you “… did similar things to [Kathleen] since she was young”. However, there is, unhelpfully, no agreement as to what the expression “young” means: two years, six years, eight years, ten years? All that the Court has been told in this regard is that you did the sorts of things to Kathleen which I have just been speaking about in connection with sequence 13 on earlier occasions in her life other than between April to May 2020 (cf T5:10, 9 April 2021). These uncharged acts are placed before the Court as context. Amongst other things, (although you are not to be punished for them today) they preclude you from suggesting that the charged acts involving Kathleen were isolated acts. In this context, your answers in cross-examination show either evasiveness or, just as concerningly, a lack of insight into your criminal conduct against your daughter (see, for example T9:49 – T10:1). And the fact that they are to be so understood (i.e. as criminal conduct) also precludes you from suggesting (as you tried to do when you were cross-examined) that these uncharged acts had any innocent connotation. I also observe that the agreed statement of facts does not state whether you had consumed alcohol when you committed these uncharged criminal acts.
Your niece, Ella, came to Australia from New Zealand to live as part of your family in December 2019. After she arrived, you touched her on her breasts over her clothing on 4 or 5 occasions whilst kissing her goodnight in her bedroom. The agreed statement of facts does not reveal how long after Ella became a member of your household that you began behaving in this way. These acts are also not the subject of any charges but have been placed before the Court for context and, again, (although you are not to be punished for them today) they preclude you from suggesting that the charged acts involving Ella, to which I shall soon refer, were acts in isolation (cf T3:10, 9 April 2021). The agreed statement of facts does not state whether you had consumed alcohol when you committed these uncharged criminal acts.
On 21 May 2020 (and after the offence being sequence 13 involving Kathleen), you arrived home from work. In the house was your wife, your two daughters, Ella, and your wife’s friend. Also present was your brother, and you and he spent time drinking alcohol and smoking cannabis.
Later that night, your brother left and you continued to consume alcohol.
At about 12:30am on Friday, 22 May 2020, Ella, who had been asleep, woke up to the feeling of pain in her vagina. She had been lying on her back, but she saw you lying on your side next to her in the bed. She could feel your hand inside her shorts and underwear, and she could feel your fingers moving fast inside her vagina, causing her a lot of pain (how many fingers in connection with this matter – or others I shall later refer to - is not revealed in the agreed statement of facts). Ella told you stop and tried to push your hand away. However, she wasn’t strong enough and you wouldn’t move your hand.
Ella tried to get up; however, you pushed her back down onto the bed by her shoulder so she couldn’t move.
It is these facts which constitutes the offence of aggravated sexual assault (sequence 2).
You removed your fingers from Ella’s vagina and started to kiss her on her neck and mouth. She described the kissing as “wet and yuck”. You told her, “It’s a secret. Don’t tell anyone. It’s just between you and me”.
It is these facts which constitutes one of the matters of intentionally sexually touching a child (sequence 1) which is on the Form 1 attaching to sequence 5.
Whilst you were kissing Ella in the way I’ve described, you put your hand underneath her top and bra and touched her breast. You then lifted the top and bra exposing her breasts. Ella tried to pull them down, however, you kept on lifting them up.
It is these facts which constitutes one of the matters of intentionally sexually touching a child (sequence 3) which is also attached to sequence 5.
As you were doing these things, you began to kiss Ella’s naked breasts.
It is these facts which constitutes another matter of intentionally sexually touching a child (sequence 4) which is also attached to sequence 5.
You then said to Ella, “If you don’t give me a kiss, I’m gonna touch your vagina”. Ella kept refusing to kiss you.
You attempted to insert your fingers into her vagina multiple times; however, Ella kept pushing your hand away.
After numerous attempts, you succeeded in inserting your fingers into Ella’s vagina for a second time – she tried to move your hand away but was unsuccessful.
Ella called out to your wife; however, she had already gone to bed and was asleep.
Ella tried to slide down the bed, but you very roughly pulled her back up. You removed your fingers from her vagina. Ella tried to roll her body towards the wall; however, you kept forcing her onto her back. You said to her, “Stop turning me on”.
You then attempted to insert your fingers into her mouth. You said to her, “I don’t love you, I’m in love with you and that’s my secret that you didn’t know”.
It is these facts which constitutes the offence of aggravated sexual assault (sequence 5), and in respect of which sequences 1, 3, 4, and 10 are to be taken into account.
After you had said these somewhat illogical things to your niece, you then again lifted up her shirt and began touching her breasts under her bra. You licked her on her mouth and breasts and continued to lick her body down to her vagina area. Ella was crying and telling you to move.
It is these facts which constitutes one of the matters of intentionally sexually touching a child (sequence 10) which is on the Form 1 attaching to sequence 5.
You stopped licking Ella’s body and started watching pornography on your phone whilst lying next to her.
You then quickly sat up and bent forward so that your head was above Ella’s vagina. You pulled her shorts and underwear halfway down her legs and then began licking inside her vagina with your tongue.
Ella was crying and trying to push you away, but you wouldn’t move. She couldn’t move her legs as your body was on top of them.
Ella began hitting you in the ribs and, after a number of minutes, you stopped and recommenced watching pornography on your phone.
You exposed Ella to the pornography you were watching on your phone and asked her to watch it with you, which she refused to do. She managed to pull her pants and underwear back up. She told you to leave her alone. You told her that you “needed a kiss” – but she refused.
It is these facts which constitutes one of the principal offences of aggravated sexual assault of a child under 16 years (sequence 6).
Ella then rolled over onto her side so that she was facing the wall. She kept moving closer to the wall to get away from you. You removed your penis from your pants and started rubbing it on Ella’s clothed lower back and bottom. Ella was hitting you with her elbow and telling you to stop. You told her to keep quiet because you thought you could hear your wife.
It is these facts which constitutes one of the principal offences of intentionally sexually touching a child under 16 years of age (sequence 7).
You then asked Ella to “play” with your penis. She refused. You told her to hurry up. You attempted to move Ella closer to you by grabbing her left hand. You squeezed her hand and forced her to touch your penis. She pulled her hand away. You told her, “You need to play with it” – she refused.
You grabbed her hand again and forced her to hold your penis. You told Ella to “turn around” – she refused. You said to her, “Hurry up and turn around” – she again refused. You said to her, “You have to make it hard”. Ella didn’t know what you meant. You were still watching pornography on your phone.
It is these facts which constitutes the principal offence of intentionally sexually touching a child under 16 years of age (sequence 9).
You then asked Ella if she knew how to perform fellatio. She said no, as she was only 13. You told her, “Come on, you have to do it”. Ella continued to refuse. You then said to her, “When you’re older and you get a boyfriend, they’re going to love you forever if you know how to do this”.
You again asked Ella if she knew how to perform fellatio and she again said no. You told her, “It’s just like licking a lollipop”.
Ella said she didn’t want to do it. You kept pulling her towards you. She again asked you to stop and you said to her, “Just stay like this”.
You then stopped watching pornography and said to Ella that you were going to leave but you wanted one more kiss. She refused. You kept requesting a kiss from her and she kept refusing. You then kissed her on her neck and mouth. You told her to open her mouth. She refused. She had her eyes closed.
It is these facts which constitutes the principal offence of inciting a child under 16 years to commit aggravated sexual assault (sequence 16).
You then began to touch Ella on her breasts again before you inserted your fingers into her vagina for a third time. She tried to move your hand away but was unable to do so.
You removed your fingers from her vagina and resumed watching pornography.
Somewhere in the house, a toilet flushed, and you quickly jumped off the bed and pulled your pants up, and you walked out of Ella’s bedroom.
It is these facts which constitutes a principal offence of aggravated sexual assault (sequence 15).
As you walked out of Ella’s bedroom, you encountered your wife. She asked what you were doing in there and you told her that you were just looking for your charger.
Your wife continued to question you.
Ultimately, your wife went into Ella’s bedroom to check on her, at which time Ella disclosed that you had touched her in the vagina (which hurt) and on the breasts, and your wife told Ella that she would “handle it”.
Your wife then confronted you with what her niece had told her, and you continued to say that the only reason you were in that room was to get your charger. Your wife told you Ella was shaking and crying in her room.
You returned to Ella’s room and said goodnight to her and whispered, “keep this a secret” before leaving her room.
Shortly thereafter, Ella urinated and felt pain.
At about 5:00am, your wife woke all the children and took them all to the police station to report what you had done to Ella. Ella was subsequently taken to Liverpool Hospital.
Later that day, you were interviewed by police and ultimately arrested. In a record of interview, you told the police that you had drunk a considerable quantity of alcohol the night before and were unable to remember any improper conduct against your niece earlier that morning. You did say that, if you had touched her, it would have been accidental.
As your pleas of guilty and the agreed facts reveal, that excuse was not true. And I am not persuaded, on the balance of probabilities, that you were unable to recall your offending against these young girls.
It is significant to note that the police accessed your phone and found that on it there had been downloaded a video entitled, “girl anal teen and girl porn hub and porn video 9e”.
The objective seriousness of each principal offence (except for sequences 12 and 7), for an offence of its kind, is a mid-range offence. Sequences 12 and 7 are very slightly below the mid-range.
By having regard to the nature of each matter on the Form 1, each will result in a meaningful increase in the sentence for the relevant principal offence.
Each principal offence is additionally aggravated because: it involved the abuse of a position of trust in relation to the relevant victim; and it was committed in the home of the relevant victim. I should not have to say this, but apparently it is necessary: I have said “additionally” to indicate that the factors of aggravation were not taken into account in my assessment of the objective seriousness of each offence.
Each of your victims has provided the Court with a brief victim impact statement. But that brevity does not take away from the harrowing consequences each of them has suffered – and continues to suffer – as a result of your depraved criminal misconduct. It is clear that each of those now young women has been highly traumatised and very seriously mentally damaged by that criminal conduct.
You are now 41 years of age.
You were born in Samoa. You and your family left Samoa for New Zealand when you were about 14 or 15 years of age.
You completed Year 11 at High School and, for a time thereafter, worked in the hospitality industry.
15 years ago you married your wife and, as I have already indicated, there are two daughters to that marriage.
You came by yourself to Australia in 2016 and, since then and until the time of your arrest, you worked for a company that outfitted display homes for sale.
Towards the end of 2016, your wife and daughters joined you in Sydney; and, at the end of 2019 or early 2020, your niece came to live in that household.
A psychological report has been tendered on your behalf without objection from the Crown. The author of the report was not required for cross-examination. Amongst other things, it contains an incomplete history as to your use or abuse of alcohol. However, based on your account only, the report suggests that, at the time of the offending, you were consuming 24 beers a night. In addition, for two years before the offending, you were using cannabis and methylamphetamine – however, the quantity of those drugs consumed is not made clear.
The psychological report does not provide any adequate explanation as to why you sexually abused these two girls.
Certainly, excessive alcohol consumption per se does not explain this criminality. Whilst it may reduce inhibitions, there is nothing to explain why this form of criminal offending was engaged in by you.
The psychologist has found that you are at an average risk of reoffending - notwithstanding what, in my view, is a lack of clarity as to why you undertook this criminal misconduct.
The psychologist also went on to say, “… [you] do not pose an unacceptable risk to the sexual safety of [your] children and children generally.” Notwithstanding that the report was tendered without objection and that the author was not required for cross-examination, the Court is not bound to accept that statement. In Taylor v R (1978) 45 FLR 343, the Full Federal Court (Smithers, Connor, and Franki JJ) was of the opinion that a tribunal of fact can reject (unanimous) medical opinion placed before it (there are many other authorities to similar affect). Their Honours cautioned, however, that the rejection should not be capricious. But it is beyond argument, on the authorities, that a tribunal of fact does have the authority to reject (unanimous) medical opinion. At page 352 of Taylor, there is a passage of particular utility from the judgment of Smithers J:

“It is clear, therefore, that in a case such as the present the jury should understand that the medical opinions are central to the case for the accused, that they may be sufficient of themselves to prove as a fact what the state of mind of the accused was at the critical time, and that, where they are accepted as honest and competent and are unchallenged, then unless the facts on which the medical witnesses have relied to form their opinion are not satisfactorily established or are contradicted by other acceptable evidence, or the jury are not persuaded that steps of reasoning in the formation of those opinions was soundly taken, or there is some other factor before them reflecting on the validity of the opinions expressed, the jury should not reject or ignore those opinions…”

I wish to emphasise two aspects of that passage: “unless the facts on which the medical witnesses have relied to form their opinion are not satisfactorily established”; and “or the jury are not persuaded that steps of reasoning in the formation of those opinions was soundly taken”. In my opinion, the psychologist has not had proper regard to the offences themselves, the uncharged criminal acts, and the type of pornography to which I have referred. I am, therefore, positively satisfied that the facts on which the psychologist has relied to form her opinion are not satisfactorily established, and I am not persuaded that her steps of reasoning informing that particular opinion was soundly taken. Rather, I am satisfied beyond reasonable doubt, by having regard to the particular offences, the uncharged acts, and the pornography that you do indeed have a sexual interest in young teenage girls (including your daughter and a girl with whom you had a father like relationship) and that you will act on that interest, at least when you are disinhibited by alcohol.

You have no meaningful insight into your criminality, and I am not persuaded that your evasive expressions of remorse are genuine.
You have no prior criminal convictions – but that is of lesser significance in offences involving children.
Overall, my assessment of your prospects of rehabilitation is that they are poor.
The community correctly abhors the sexual molestation of young children – even more so when it occurs within their own home where they are entitled to feel safe and protected; and when it occurs at the hands of their father or father figure.
In WC v R [2016] NSWCCA 173, Campbell J (with whom Hoeben CJ at CL and N. Adams J agreed) implicitly approved (at [29]) of the following observation by the relevant primary judge:

“… In this country, for the overwhelming majority of fathers, the love they have for their daughter is such that they would give their own life to protect and keep them from harm. When fathers like the offender are finally exposed for their horrific crimes, the community expects the Court will impose severe punishment.”

Whilst your offending is not as serious as that with which the Court of Criminal Appeal and the primary judge in that case was concerned, that dicta is still instructive and I respectfully adopt it.
In your case, general deterrence is the paramount sentence consideration and is fully engaged. Specific deterrence is also fully engaged.
No sentence other than a sentence of full-time imprisonment for any of the principal offences is appropriate.
I intend imposing an aggregate sentence; that sentence will be backdated to the date of your arrest.
You entered early pleas of guilty and, accordingly, there will be a discount of 25 per cent to the indicative sentences which underpin the ultimate aggregate sentence.
The indicative sentences underpinning the ultimate aggregate sentence are as follows.
In relation to sequence 12, the indicative sentence is 3 years 9 months imprisonment minus 25 per cent, i.e. 2 years 9 months imprisonment.
In relation to sequence 13, the indicative sentence is 4 years 6 months imprisonment minus 25 per cent, i.e. 3 years 4 months imprisonment.
In relation to sequence 2, the indicative sentence is 8 years imprisonment minus 25 per cent, i.e. 6 years imprisonment. The indicative non-parole period is 4 years 6 months.
In relation to sequence 5, and taking into account sequences 1, 3, 4 and 10, the indicative sentence is 9 years 6 months imprisonment minus 25 per cent, i.e. 7 years 1 month imprisonment. The indicative non-parole period is 5 years 3 months.
In relation to sequence 6, the indicative sentence is 8 years imprisonment minus 25 per cent, i.e. 6 years imprisonment. The indicative non-parole period is 4 years 6 months.
In relation to sequence 7, the indicative sentence is 4 years imprisonment minus 25 per cent, i.e. 3 years imprisonment.
In relation to sequence 9, the indicative sentence is 5 years 6 months imprisonment minus 25 per cent, i.e. 4 years 1 month imprisonment.
In relation to sequence 16, the indicative sentence is 7 years imprisonment minus 25 per cent, i.e. 5 years 3 months. The indicative non-parole period is 3 years 11 months.
In relation to sequence 15, the indicative sentence is 8 years imprisonment minus 25 per cent, i.e. 6 years imprisonment. The indicative non-parole period is 4 years 6 months.
I have taken totality into account.
I decline to make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period. The period on parole that I shall fix without such an adjustment will be more than sufficient to address your prospects for rehabilitation.
Mr Hampden, for the nine principal offences to which I have already referred and taking into account the matters on the relevant Form 1 in relation to sequence 5, I sentence you to a term of imprisonment of 12 years.
I fix a non-parole period of 9 years to date from 22 May 2020 and which will expire on 21 May 2029.
I fix a balance of 3 years to date from 22 May 2029 and which will expire on 21 May 2032.

Decision last updated: 26 May 2021

Medium Neutral Citation:	R v Hampden (a pseudonym) [2021] NSWDC 195
Hearing dates:	9 April 2021
Decision date:	26 May 2021
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 12 years with a non parole period of 9 years.
Catchwords:	CRIME - SENTENCE - aggravated sexual assault with a victim under 16 years - intentionally sexually touching a child - inciting the commission of aggravated sexual assault with a victim under 16 years of age.
Legislation Cited:	Crimes Act 1900 (NSW): ss61J; 66DB(a); and 61J and 80G.
Cases Cited:	Taylor v R (1978) 45 FLR 343; WC v R [2016] NSWCCA 173
Category:	Sentence
Parties:	Regina (Crown) Hampden (a pseudonym) (Offender)
Representation:	Ms Macdonald (ODPP Campbelltown) Mr Townsend (Legal Aid Campbelltown)
File Number(s):	2020/153609
Publication restriction:	Statutory non publication and suppression orders of the names of the offender and the victims and anything else which might identify any of them, directly or indirectly.