R v Hawke

[2018] VCC 518

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01535

DIRECTOR OF PUBLIC PROSECUTIONS

v

HOWARD HAWKE

---

JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	13 April 2018
DATE OF SENTENCE:	19 April 2018
CASE MAY BE CITED AS:	R v Hawke
MEDIUM NEUTRAL CITATION:	[2018] VCC 518

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K Breckweg	Cth DPP
For the Accused	Mr R Timms	Cahills Solicitors

HIS HONOUR:

Introduction

1.Howard John Hawke, you have pleaded guilty to an indictment containing five Commonwealth charges and two State charges. 

2.The Commonwealth charges are as follows:

·Charge 1 - produce child-abuse material outside Australia contrary to s 273.6(1) of the Criminal Code (Cth), which carries a maximum penalty of 15 years imprisonment;

·Charge 3 - transmit material using a carriage service the material being child pornography contrary to s 474.19(1) of the Criminal Code (Cth), which carries a maximum penalty of 15 years imprisonment;

·Charge 5 - do an act with the intention of planning an offence against s 272.8 of the Criminal Code (Cth), namely an offence of engaging in sexual intercourse with a child outside Australia contrary to s 272.20(1) of the Criminal Code (Cth), which carries a maximum penalty of 10 years imprisonment;

·Charge 6 - engaging in conduct with the intention of encouraging an offence against division 272 of the Criminal Code (Cth), contrary to s 272.19(1) by encouraging a person to engage in sexual intercourse with a known child outside Australia contrary to s 272.8(1), and encouraging a person to engage in sexual activity other than sexual intercourse with an unknown child outside Australia contrary to s 272.9(1), which carries a maximum penalty of 20 years imprisonment; and

·Charge 7 - engaging in conduct in relation to a child under the age of 16 while outside Australia, with the intention of procuring the child to engage in sexual activity outside Australia contrary to s 272.14(1) of the Criminal Code (Cth), which carries a maximum penalty of 15 years imprisonment.

3.The state charges are as follows:

·Charge 2 – commit an indecent assault contrary to s 40(1) of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment; and

·Charge 4 – knowingly possess child pornography material contrary to s 70(1) of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment.

4.You have no prior convictions.

Circumstances of the offences

5.A prosecution opening was tendered on the plea which may be summarised as follows: 

6.In early 2017, you Howard John Hawke commenced telephone communications with a woman located in Thailand named Kulap Bunnag[1] who you knew from previous trips you had made to Thailand. In multiple telephone calls to Ms Bunnag you sought her assistance in procuring Thai children who you would then engage in sexual activity with during a trip you had planned to take to Thailand in April 2017.

[1] Kulap Bunnag is a pseudonym.

7.The intercepted telephone conversations between you and Ms Bunnag between 16 and 30 March 2017 revealed discussions between the two of you about planned sexual activity between you and Ms Bunnag's two-year-old granddaughter who was referred to as ‘Bo Baby’, and other unidentified children. Also during that period you remitted funds to Ms Bunnag in order to assist in procuring Thai children for sexual activity. 

Charge 1

8.On 31 March 2017, police seized an external hard disc owned by you. On that disc was a video entitled ‘BOW MOVIEW’ which depicted you naked and whipping a naked Asian child. The child's wrists are bound above her head and she is wearing a dog collar around her neck. The child depicted in the video is a Thai child named ‘Bo’ and is the daughter of Ms Bunnag. You produced the video on 24 May 2015 when you were in Thailand.

9.In the intercepted telephone conversations between you and Ms Bunnag almost two years later in March 2017, there are several references to the same child. In one of the calls on 21 March 2017, you asked Ms Bunnag how old Bo was. Ms Bunnag responded that she was 18 years old. The child's age as stated by her mother in 2017, together with her physical appearance on the video demonstrates that she was under 18 at the time of the offending.  In 2015 you knew that to be the case. On the plea it was accepted by both parties that she was aged 16 at the time of the video.

10.There are further references in the intercepted telephone conversations in 2017 that shed light on the nature of the sexual activity between you and Bo and the events of 2015. On 16 March 2017, you asked Ms Bunnag if her daughter Bo, who resided in Thailand could come and stay with you in Surin if you went there.  Ms Bunnag agreed. You stated you were trying to get a quiet hotel so you could whip Bo and she could scream but nobody would say anything. Alternatively, you stated that if you could not get a hotel, you could take her to the jungle, tie her to a tree and whip her and she could scream as much as she likes.

11.Also on 16 March 2017, you conducted internet searches looking for hotels, real estate villas and house listings in Surin, Thailand. On the evening of
16 March 2017, you again spoke to Ms Bunnag and told her that you had sent money the day before which she confirmed she had received. You then said you may go to Surin at the end of April and if Bo wanted she could go and stay with you.

12.On 17 March 2017, you again spoke to Ms Bunnag at which time you told her that you had watched the movie of Ms Bunnag whipping her daughter Bo and asked Ms Bunnag to hurt Bo by ‘placing needles in her clitoris’ and whipping her until she bled. You also expressed your desire to make movies of foreigners ‘fucking Bo’ and making her experience a lot of pain. On 19 March 2017, you spoke of whipping Bo while you anally penetrated her daughter referred to as ‘Bo Baby’.

13.On 19 March 2017, you told Ms Bunnag that you ‘whipped Bo in the motel before. Not scream too much. I video her. I watch. I'm whipping Bo in the motel’.  In another call on the same day you asked Ms Bunnag if Bo had a young friend who you could meet as you would like to ‘whip’ and ‘fuck’ Bo and her friend ‘up the arse’. On 20 March 2017, in a further conversation between you and Ms Bunnag you asked Ms Bunnag if she wanted you to get other foreigners to also engage in sexual activity with Bo and to whip her as they watched and they could also make some money.

Charge 2

14.This charge is a state charge.

15.Sometime between 1 January 2017 and 30 March 2017, you indecently assaulted a 23-year-old woman named Joanna English[2] who resided in the same share house with you. Ms English is cognitively impaired. 

[2] Joanna English is a pseudonym.

16.It was during the search warrant on 31 March 2017 that Ms English told police that she had previously gone into your bedroom and asked you for your car keys. She stated that you were naked from the waist down at the time that you took her hand and tried to put it on your penis. She pulled her hand away and left the room. 

Charge 3

17.On 5 April 2017, the Australian Federal Police received a referral from Facebook relating to the transmission of child pornography material by you.  Ninety images were transmitted by you to Facebook user Lindsay Watson on 31 January 2017 of which 13 images were classified as child pornography. Of the 13 images, 11 were classified as category five child pornography material pursuant to the Australian National Victim Image Library (ANVIL) and two were category one. Lindsay Watson is also known as Somsawi. 

Charge 4

18.On 31 January 2017, you were in possession of the 13 child pornography images which you had transmitted to a Facebook user the subject of
charge 3. 

19.On 31 March 2017, during the execution of a search warrant at your residence, police observed two computer monitors in your bedroom. Child pornography videos were being played on both monitors and you were present in the room.  Both videos were classified as category four child pornography which refers to material involving sexual penetration between a child and an adult. In this case the child was aged between 10 and 12 years. Also during the search, police seized a HP laptop computer containing 26 images and two videos, a Western Digital external hard drive with duplicates only (not included in the total), a USB with duplicates only (not included in the total), a camera which contained still frames taken from one of the videos located on the laptop (not included in the total) and a yellow manila folder labelled ‘pictures’, which contained one image.

20.Eight images located on the HP laptop were duplicates of images that you had sent to the Facebook user on 31 January 2017 and also not included in the total under this charge.

21.Following your arrest police were provided with a disc that had been located in your television by another resident in your house. Examination of this disc revealed that it contained five child pornography videos. 

22.In total, you were in possession of 32 child pornography images and seven child pornography videos during the period of the charge (not including duplicates).

23.Of the 26 image files and two video files found on the HP laptop, 12 of the image files were category one, one was category three, and 13 were category five.  The two video files were category five. The disc that was provided contained five images being one category one, one category two, two category four and one category five. The image found in the manila folder was a category one image. The images transferred via Facebook have been described above.

24.Analysis of your electronic devices revealed search terms used by you including ‘schoolgirl torture stories’, ‘schoolgirl caning video’, ‘Japanese virgin deflowered’, ‘preteen schoolgirl whipping videos’ and ‘young girls trained as sex slaves’. 

Charge 5

25.Between 16 March 2017 and 29 March 2017, you engaged in several telephone conversations with Ms Bunnag where you discussed with Ms Bunnag finding a young child for you to engage in sexual activity with when you travelled to Thailand in April 2017.

26.On 16 March 2017, in a conversation between you and Ms Bunnag you stated amongst other things ‘you not have young one for me yet?’ and ‘what about young one for whipping’. During this conversation you said that you would come to Surin at the end of April 2017.

27.On 20 March 2017, you spoke to Ms Bunnag and told her to contact her daughter Bo and told her to find a ‘young one’ and stated that she must be slim and tall and not unsatisfactory. You also requested that Ms Bunnag obtain videos of young ones and find young ones for whipping as you get ‘fucking horny seeing young one hurt and I have new clamps and new whip’. You also asked her to find five or six year old children and if she finds a young one, she can make money by making a video of the child being hurt and sexually penetrated.

28.On 21 March 2017, you asked Ms Bunnag if she had attended a school to find young children. Ms Bunnag responded as she had on previous occasions by saying ‘Mamma say cannot’. You asked how old the child was and
Ms Bunnag responded eight. You asked if she had told the child not to tell her mother. Ms Bunnag said that she had told that to the child and told her she could attend the house to be whipped. You then stated ‘when I come I'm gunna fuck her, okay’. In a further call on the same day you again asked Ms Bunnag to attend the school to find young ones that want money and requested that she take a video of the eight-year-old referred to earlier.  

29.On 25 March 2017, you asked if Ms Bunnag's employees have ‘young girl or baby’ and when she responded there is no girl, you replied ‘No, no good. I don't like fucking boys’. On 27 March 2017, you again asked Ms Bunnag if she could find you young children to sexually abuse. On 29 March 2017, you said to Ms Bunnag ‘so you can’t find one for whip, for me, you’ve got a young one for whip, you’re still lookin’ for a young one to whip? You cannot find?’

Charge 6

30.On 19 March 2017, you encouraged Ms Bunnag to engage in sexual activity (other than sexual intercourse) with a child outside Australia when you told
Ms Bunnag that she can whip the young ones she is procuring for you before you arrived in Thailand and that you like to see young ones hurt when you whip them and that she needs to fix her video. This is said to be a reference to you directing Ms Bunnag to film herself whipping a child so that you can view the video.

31.Also on 19 March 2017, in conversation with Ms Bunnag, you encouraged her to teach the baby, her two-year-old granddaughter, to ‘suck cock’. On 29 March 2017, in a further conversation with Ms Bunnag you encouraged her to engage in sexual activity with the same baby by asking her to place her fingers in the baby’s bottom to see how many fingers could be inserted so that you could ‘fuck’ the baby when you travelled to Thailand. Ms Bunnag said no and that the baby was sleeping. You said she could do so when the baby wakes up and asked ‘how many fingers do you think’. Ms Bunnag responded ‘Oh when you come I do, now I not do’. You then asked ‘she can take my cock do you think?’ and Ms Bunnag responded, ‘yes’. You then said to Ms Bunnag ‘you gonna scream when I fuck her up the arse’.

32.On 28 March 2017 between 4.30 pm and 8.20 pm you accessed the Jetstar and Thai Airline websites in preparation for the planned trip to Thailand. 

Charge 7

33.On 19 March 2017, you telephoned Ms Bunnag and stated that when you arrived in Thailand at the end of April you wanted to anally penetrate Bo's baby
(Ms Bunnag's granddaughter and referred to in the charge as ‘Bo Baby’), who was approximately two years old. You stated that you wanted Bo's baby to suck your cock while you whipped Bo. You asked Ms Bunnag if you could teach the baby to ‘suck cock’ while you whipped Bo to which she responded ‘yeah’. You then said you would try and see if you could penetrate the baby’s anus but it might be too small and you told Ms Bunnag that she and Bo would have to hold her down ‘so I can stick my cock up her arse’. In another call later that day Bo Baby is placed on the telephone to you and you tell the child ‘when I come I gunna make you suck my cock, ok?’ You told Ms Bunnag that when the child gets older you want to ‘fuck her’ to which Ms Bunnag responded ‘you have to wait five year and six-year-old you can fuck’.

34.On 20 March 2017, there is a further conversation between you and
Ms Bunnag about engaging in sexual activity with Bo Baby and on 21 March 2017, you told Ms Bunnag that you were going to travel to Thailand at the end of April and that you wanted Bo Baby to ‘suck your cock’. You later stated that you intended to sexually penetrate the child when she is five years old. On 22 March 2017, in a similar conversation, you said ‘I think when I come I’ll try her bum’ and further stated that Bo and Ms Bunnag could hold the baby down and that the baby would have to learn to suck you. Similar conversations occurred on 27, 28 and 29 March 2017.

35.During the period of charges 5, 6 and 7, you sent money to Ms Bunnag using Western Union. You made three transfers of $60 each on 19, 22 and 27 March 2017.

Records of Interview

36.On 31 March 2017, you were interviewed by police where you stated that you did a lot of internet browsing and the images on your monitor were from the internet. You denied the films had children in them. You denied having a sexual relationship with Bo. You said that you asked Ms Bunnag to go to schools because you had fantasies and asked her to put her finger in the baby's bottom because it is a fantasy. When asked about a video of you whipping a young child, you said it would be something from the internet and that you fantasised on the internet all day every day.

37.On 19 May 2017, you were further interviewed by police where you denied transmitting images to Ms Bunnag and Somsawai on Facebook. You said however they were both long-time friends of yours. You said that Ms Bunnag is an old girlfriend that you had known for nearly 10 years and that she had one daughter called Bo. You stated that Bo would be 19 or 20 but you did not know. In relation to Western Union money transfers made to Thai women including Ms Bunnag and Somsawai, you said that you sent money to three or four because they need money and denied sending them money in order for them to find children for you to sexually abuse. You stated that you had never had communications with those women about children for the purposes of sexual exploitation. You said all the calls you had were fantasy.

38.You denied sexually assaulting Ms English.

Objective seriousness of the offences

39.In the vast majority of these types of cases where the charges relate to possession and/or transmission of child abuse material, the offenders are not directly connected with the victims. In your case however, in 2015 you produced the video the subject of charge 1, and are featured in it naked and whipping a child. Approximately two years later, you engage in numerous conversations with the mother of that child with the intention of further sexually abusing that child but most disturbingly, you encourage and plan to commit offences against that girls own daughter who was two years of age.

40.The conversations you engage in with Ms Bunnag in 2017 confirmed your production of the video in 2015 and as outlined above, demonstrate your sexual interest in children of a very young age. The conversations are very disturbing, depicting scenarios that amount to the most serious and depraved sexual and physical abuse of very young children.

41.You also say in answers to questions in your record of interview that you had asked Ms Bunnag to go to schools because you have fantasies and that you had asked her to put her finger in the baby's bottom because it is a fantasy. It was submitted on your behalf that all the conversations were of a fantasy nature and were designed only to stimulate you sexually. While I accept that your conversations may have had the effect of stimulating you sexually, the difference here is that these conversations were had with the mother of a child that you had already sexually abused. They were conversations with a woman that you had paid money to and made requests of finding younger children for you to sexually abuse. You had already travelled extensively in Southeast Asia, you had an established relationship with Ms Bunnag and you had abused her own child. Most disturbingly, you were engaging her and encouraging her to commit offences with her own granddaughter who was two years of age for your sexual gratification. At one point you even spoke to the two-year-old. 

42.In all the circumstances in my view, in relation to the Commonwealth charges on the indictment and the state charge of possessing child pornography these are very serious examples of those offences. 

43.I also consider the state charge of indecent assault a serious charge as it involved a vulnerable, cognitively impaired person who was living in your house.

Personal circumstances

44.You are 69 years old age and will turn 70 on 15 May 2018. You are a single man, you have never married and you have no children. You were educated at Trinity Grammar School in Sydney where you completed your secondary schooling.

45.You have since leaving school been extensively employed in marketing, sales and manufacturing industries. You became involved in piggery management and in 1987 you purchased a pig farm in Western Australia. You sold the farm in 2006 and since that time you have travelled extensively particularly in Southeast Asia which is where you met Kulap Bunnag and formed a relationship with her.

46.It was submitted that while you travelled in places such as Thailand you became involved in an extremely sexualised lifestyle. You frequented bars and nightclubs where sex was freely available. It was in one of these bars that you met Ms Bunnag.

47.You suffer from a number of medical conditions including hypertension and diabetes. You are HIV positive however that is controlled by prescribed medication that you continue to take.

48.You have limited support in the community. You have a sister who lives in Queensland and you have not told her of these offences. It was put that in the last 10 years you have effectively led a nomadic lifestyle travelling. When arrested you were living in a boarding house.

Sentencing considerations

49.Of the five Commonwealth charges I am required to take a number of matters into account pursuant to section 16A of the Crimes Act 1914 (Cth). Ms Breckweg on behalf of the Commonwealth DPP, highlighted a number of the matters in section 16A(2) that must be given weight. In cases such as this it was submitted, and I agree, that general deterrence must be a paramount sentencing consideration. Offences of this nature are difficult to detect and involve sexually motivated exploitation of children. Such conduct must be denounced by courts in clear terms.

50.It was also submitted that although you do not have any prior convictions, specific deterrence should still be given weight. This is so, it was submitted because your conversations with Ms Bunnag could not be said to be mere fantasy but demonstrated your ongoing sexual interest in children and a plan to further engage in sexual activity with children. While it may be the case that you gained some form of sexual gratification from the nature of the conversations, they were conversations about real people and a child that you had already sexually abused. The conversations were in preparation for a trip you were planning to Thailand in order to engage in further child sexual abuse with the child you had already abused and her own daughter, who was aged two at the time. You also encouraged Ms Bunnag to engage in sexual abuse of the same children and recruit other young children. As such, in my view specific deterrence must also play a part in the sentencing equation. That said, your ongoing health issues, together with the fact that the sentence I impose will take you well into your 70’s, suggests that the risk of you reoffending will reduce over time.

51.Mr Timms who appeared on your behalf, submitted that charges 5, 6 and 7 were preparatory offences only. That is not so. The legislation clearly states that they are offences that describe specific conduct related to planning or encouraging an offence and procuring a child to engage in sexual activity. I accept however that those three charges arise from the same series of telephone conversations over approximately 10 days and there is a degree of overlap between them. That said, it was submitted on behalf of the DPP that charges 5, 6 and 7 are rolled up charges bringing together a number of instances of you conversing with Ms Bunnag that may have resulted in a number of separate charges.

52.Just punishment and denunciation of your conduct are also relevant sentencing considerations in this instance. 

53.Your counsel accepted that your offending was serious however submitted that principles of totality and parsimony must also be weighed in the balance.  Ultimately, he submitted in all the circumstances that given your age and ongoing health issues, a sentence of imprisonment will be difficult for you, although I note that at present your health issues are being adequately managed and are stable.

54.I take into account your plea of guilty in that it has saved the time and expense of a trial. It was submitted that although you were originally going to contest these charges, you were at all times in negotiations with the prosecution. Thus your plea of guilty has facilitated the course of justice and I take that into account. However there was no evidence before the court of genuine remorse over and above the plea of guilty.

55.As to your prospects of rehabilitation, there was little put by way of evidence other than the fact that you have, since being on remand sought to engage in a sex offenders course but have been unable to as you were not a sentenced prisoner. There was no psychological material submitted on your behalf and so it is difficult to determine your prospects. On your own admission you were consuming child pornography constantly over a significant period and were, at the time of arrest, planning to engage in further child sexual activity overseas. In the circumstances, based on the current evidence, your prospects of rehabilitation can only be approached with caution.

56.As to the State charge of indecent assault I take into account the Victim Impact Statement tendered and the effects of the crime on the victim as described.  She was a vulnerable person living in your house and in an opportunistic way, you sexually assaulted her. 

57.Ms Breckweg submitted, and your counsel rightly conceded, that the only appropriate sentence in relation to the Commonwealth charges is one of imprisonment. Pursuant to section 17A(1) of the Crimes Act 2014, I am satisfied that no other sentence is appropriate.

Sentence

58.Mr Hawke please stand. 

59.In sentencing you I will deal with the two state charges first. Sentences on those two charges will begin today, 19 April 2018.

60.On charge 2, the charge of indecent assault, you are convicted and sentenced to 2 years imprisonment.

61.On charge 4, the charge of knowingly possessing child pornography material, you will be convicted and sentenced to 3 years imprisonment. I direct that one year on charge 2 be served cumulatively on charge 4.

62.The sentence on charge 4 will commence on 19 April 2019.

63.The total effective sentence on the state charges is 4 years imprisonment.

64.In relation to the Commonwealth charges you will be sentenced as follows:

65.On charge 1, produce child abuse material outside Australia, you will be convicted and sentenced to 7 years imprisonment. That sentence will commence on 19 October 2019 or 18 months after the State sentence commences.

66.On charge 3, transmit material using a carriage service, you will be convicted and sentenced to 3 years imprisonment. That sentence will commence on 19 January 2024.

67.On charge 5, doing an act with the intention of planning an offence, you will be convicted and sentenced to 4 years imprisonment. That sentence will commence on 19 July 2023.

68.On charge 6, engaging in conduct with the intention of encouraging an offence, you will be convicted and sentenced to 5 years imprisonment. That sentence will commence on 19 January 2023.

69.On charge 7, engaging in conduct in relation to a child, you will be convicted and sentenced to 4 years imprisonment. That sentence will commence on 19 July 2024.

70.That makes for a total effective sentence on the Commonwealth charges of 8 years and 9 months.

71.In relation to the state charges I fix a non-parole period of 18 months, that is, from today until 19 October 2019.

72.In relation to the Commonwealth charges I fix a non-parole period of 6 years, starting on 19 October 2019.

73.That makes for a global non-parole period of 7 years and 6 months from today.

74.The global total effective sentence is 10 years and 3 months with a non-parole period of 7 years and 6 months.

75.I declare that 384 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

76.As I am sentencing you to a period of imprisonment in relation to
charges 2 and 3, you fall to be sentenced as a Serious Sexual Offender in relation to charge 4, pursuant to Part 2A of the Sentencing Act 1991, however in all the circumstances I do not consider that a disproportionate sentence should be passed.

77.Further, the offences you have pleaded guilty to will result in you being required to comply with the reporting requirements imposed by the Sex Offenders Registration Act 2004 for the remainder of your life.

78.If not for your plea of guilty I would have sentenced you to a period of imprisonment of 13 years with a non-parole period of 10 years.