R v Hunt [2016] ACTSC 52

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - sexual offences - act of indecency on child under 10 years - sexual intercourse with child under 10 years - act of indecency in the presence of child under 16 years - common assault - hardship to offender's family arising from custodial sentence - offender's prior contribution to community - delay in prosecution following initial complaint.

Crimes Act 1900 (ACT), ss 26, 55(1), 61(1), 61(2)

Supreme Court Act 1933 (ACT), ss 68D, 68E

R v Edwards (1996) 90 A Crim R 510

R v H [2015] ACTSC 221

R v Latona & McCabe [2012] ACTSC, Penfold J, 19 November 2012

R v Verdins [2007] VSCA 102; (2007) 169 A Crim R 581

R v WR (No 4) [2015] ACTSC 211

R v WR (No 5) [2015] ACTSC 258

SCC 92 of 2015; SCC 94 of 2015

1. Clyde Hunt has been found guilty by a jury of four offences, as follows:

(a) Count 1 charged an act of indecency on a child under 10 years, arising under s 61(1) of the Crimes Act 1900 (ACT) and carrying a maximum penalty including 12 years imprisonment;

(b) Counts 2 and 3 charged sexual intercourse with a child under 10 years, arising under s 55(1) of the Crimes Act and carrying a maximum penalty including 17 years imprisonment;

(c) Count 4 charged one act of indecency in the presence of a child under 16 years, arising under s 61(2) of the Crimes Act and carrying a maximum penalty including 10 years imprisonment.

2. As well, I need to consider three charges of common assault under s 26 of the Crimes Act. Those charges, being summary offences, were not put to the jury. Instead, under s 68D of the Supreme Court Act 1933 (ACT), I must deal with those matters if I consider it is in the interests of justice to do so and, if so, I must make findings on those charges by reference to the evidence given before the jury (s 68E of the Supreme Court Act). Depending on my verdicts, I may also be obliged to sentence Mr Hunt for those offences.

3. The indictment setting out the sexual offences specified a period from 1 January 2008 to 31 December 2009 in which the offences were said to have been committed. The summary charges relate to the same period.

4. Mr Hunt was an ACTION bus driver. He had met the mother of the two complainants around 2004 or 2005, when she travelled regularly on his bus. She was separated from her husband and had a full-time job at a hotel.

5. Mr Hunt became friendly with the mother and in due course began visiting her at home, especially between split shifts; sometimes he helped with household tasks, including mowing the lawns. It is not in dispute that during 2008 and 2009 the friendship continued. Mr Hunt conceded that the relationship involved sexual intercourse on one occasion in 2009, after which, he said, he stopped visiting the mother because he had been seen naked by one of the girls; the mother said that they had had a romantic relationship from 2009 until 2011.

6. The complainants gave evidence that during the relevant period specified in the indictment, Mr Hunt often came around during the day when their mother was at work and they were home alone; the two girls had missed a lot of school during this period, although this was not said to have anything to do with Mr Hunt's visits.

7. The younger child, QM, gave evidence of an occasion when she was eight or nine and had been alone with Mr Hunt while her mother and sister were both out. She described Mr Hunt putting her on his lap, and said that she knew he was going to touch her. She told him not to, and when he ignored that she hit him in the face and the stomach. She said he then hit her in the stomach, which really hurt; she said it felt like she had been hit by a truck. After that, QM said, he put her back on his lap, touched her breasts under her shirt, and then removed her shorts, put his finger in her vagina and, in her words, vibrated or tickled it. This incident gave rise to Counts 1 and 2 in the trial, and the first charge of assault.

8. On a second occasion, QM said, Mr Hunt had come to the house while her mother was out and her sister was in another room playing on a PlayStation and therefore not listening to anything anywhere else in the house. QM said that Mr Hunt had again put her on his lap, and after trying unsuccessfully to get away, she had again hit him in the face. He had sworn at her and hit her in the stomach, she had hit him again, and then he had hit her even harder, "with a lot of force", in the stomach. Then Mr Hunt had put his hand down her pants and put his finger in her vagina and vibrated it, continuing while QM repeatedly told him that she did not like it and that he should go away. She described the second blow as making her feel "like I was going to throw up" and as if she had a massive bruise and was bleeding there. This incident gave rise to Count 3 and the second and third assault charges.

9. The older girl, OM, described repeated incidents in which Mr Hunt had touched her breasts and vagina, but Count 4 in fact related to a time when OM had been about 10 and, she said, Mr Hunt had shown her his penis. She said that her mother was not at home and her sister was elsewhere in the house. She was sitting on a couch in her bedroom, and Mr Hunt was standing in front of the couch. She thought that his penis had been erect, but was not sure.

10. In 2011, OM told her mother about Mr Hunt's actions, and her mother took her to see a doctor. The doctor indicated an intention to report the matter, but it seems that no report was made. However, the mother said that OM's disclosure caused her to end the relationship with Mr Hunt.

11. Mr Hunt came to police attention in 2014, after he saw the complainants' mother on his bus one day and asked if he could visit just to talk. While he was there, OM came home early from school. When she saw Mr Hunt was there she left the house, telling her mother she did not feel safe at home if Mr Hunt was there. She stayed with a friend, not returning home for some time. When the school authorities became aware of the reason for OM's absence, they reported the matter to police.

12. In January 2015, Mr Hunt was charged with the four sexual offences for which I must now sentence him, although the fourth count was originally described as an act of indecency on OM. He pleaded not guilty, and on 29 April 2015 was committed to this Court for trial. He had also been charged in the Magistrates Court with the three assaults already mentioned.

13. Mr Hunt was granted bail after being charged, but was remanded in custody after the jury delivered its guilty verdicts on 16 December 2015.

14. Evidence of the assaults was given in the jury trial. In the circumstances, I consider that it is in the interests of justice for me to deal with those charges in the current proceedings.

15. I have already outlined the evidence of the assaults given by QM. Mr Hunt, in his evidence at trial, denied the accusations of sexual misconduct made by the two girls, and also denied that there was ever a time when he punched QM after she had punched him. No additional evidence was called by either party after the trial, although that could have been done under the Supreme Court Act.

16. I am satisfied beyond reasonable doubt by the evidence that I heard during the trial that Mr Hunt assaulted QM on the occasions to which the three charges relate. Accordingly, I enter verdicts of guilty on those three charges.

17. As well as the evidence at trial, the following material is in evidence before me:

(a) Mr Hunt's criminal history;

(b) a pre-sentence report;

(c) an Adult Sex Offender Program assessment; and

(d) two victim impact statements;

(a) material relating to Mr Hunt's son's recent motorbike accident and the significance of the care that Mr Hunt could provide for him if he, Mr Hunt, were in the community;

(b) a reference from one Natasha Weatherburn; and

(c) material relating to Mr Hunt's long and substantial volunteer service with the ACT Rural Fire Service.

19. As well, oral evidence was given by Mr Hunt's wife.

20. In considering the objective seriousness of the offences, I have had regard to the following matters.

21. Sexual offences against children are regarded as serious offences, as shown by the very high maximum penalties I have already mentioned.

22. In the case of each complainant, the evidence was that Mr Hunt's offending had been part of an ongoing course of inappropriate behaviour towards her.

23. Although Mr Hunt had no formal position of trust or authority in relation to the two girls, I consider that he took advantage of the access to the girls that he gained as a result of his relationship with their mother, including by visiting them when he would have had reason to expect that their mother would not be present.

24. The Crown emphasised that the girls were vulnerable victims who had been abused in their own home, where they should have been able to feel safe, and despite their requests to Mr Hunt to leave the house.

25. Both complainants made victim impact statements.

26. QM referred to her difficulties in trusting people, especially males, her concern that the abuse she suffered may happen to others, and her sense of responsibility for ensuring that it doesn't happen to others. She said that after Mr Hunt came back into their lives she had trouble sleeping and concentrating, and has often missed parts of the school day because she avoided getting on buses that Mr Hunt might be driving. She has started seeing a counsellor.

27. OM also has recently started getting help; she is seeing a psychologist. She described problems within the family because her mother feels guilty about what happened. She finds it uncomfortable at home and misses the capacity to be close to the rest of her family.

28. The Adult Sex Offender Program assessment noted that Mr Hunt's use of violence in the context of the sexual offences "raises possible implications of grooming through control and intimidation". However, in sentencing for the sexual offences I have not taken account of the violence except as part of the general circumstances of the relevant offences. Nor have I sentenced for the violent offences on the basis that they were part of a grooming technique as distinct from being associated with the particular sexual offences.

29. Mr Hunt continues to deny the offences, and as such has shown no remorse, instead claiming that the allegations made against him were retribution for his rejection of the complainants' mother.

30. The sexual offences against QM are in my view of mid-range seriousness. The assault offences, committed as they were in the context of subjecting QM to sexual interference, are of at least mid-range seriousness. The sexual offence against OM falls somewhere below mid-range seriousness.

31. I have also had regard in this sentencing to Mr Hunt's subjective circumstances.

32. Mr Hunt is now 63. His criminal history (which involves records from New South Wales and Victoria as well as the ACT) consists of several minor offences, such as using indecent language in a public place, that were committed more than 40 years ago, and a number of traffic offences, mostly speeding offences, committed in the late 1970s and early 1980s. There is no previous sex offending.

33. The pre-sentence report provides the following information about Mr Hunt's background.

Mr Hunt's parents and his step father are deceased. He reported a supportive marriage to a pro-social partner who visited him regularly in custody. She stated they had been married for 41 years and noted it was a good marriage. She stated she is reliant on him for finances, household tasks and emotional needs. Both the offender and his wife denied he had a relationship with the victim's mother.

... The offender's wife stated he had a good relationship with his son and service records indicate he had contact visits with his son in December 2015 and January 2016.

Mr Hunt owns his residence with his wife.

Mr Hunt stated he completed Year 12 and had undertaken a number of trade specific tickets and certificates.

[He] was employed with an ACT Government transport organisation for over 15 years. His wife believed he worked long hours and had a strong work ethic. He stated he was stood down from this position upon being charged with his current offences. [He] soon found [employment] as a truck driver, which he held for 12 months before his incarceration.

Mr Hunt ... volunteered for 26 years with the Rural Fire Fighting services.

Mr Hunt stated he financially supported his wife and noted the ongoing financial difficulties since his incarceration. His wife reported she was reliant on him and due to his loss of income, she had applied for social assistance.

...

Mr Hunt stated that he was connected to a religious organisation and had been visited by his priest whilst remanded in custody. His wife stated his connection to the church had greatly increased since his remand.

Mr Hunt's wife reported he regularly helped his neighbours with their gardens and household maintenance. She stated that even after working long hours, he would undertake these tasks for his local community and as a consequence was sometimes out until late in the evening.

Mr Hunt experienced poor mental health when he was remanded in custody. ACT Health records indicate he entered custody as a "Prisoner at Risk" due to a history of depression and his [family's] concerns that he may self harm.

Mr Hunt stated he experienced suicidal ideation in 2005. He saw a psychologist at this time. ACT Health records indicated the Crisis Assessment and Treatment Team (CATT) made contact with Mr Hunt in 2005 and again in 2006 for situational crisis. Mr Hunt stated he experienced low periods of mental health at this time ... .

34. As already noted, after being charged and stood down by ACTION Buses, Mr Hunt had worked as a truck driver. His wife said that she expected that Mr Hunt would want to return to work after his release, but she believed they would soon be able to access his superannuation, as a result of which he would not need to work.

35. Mrs Hunt gave evidence that she had retired some time ago, but returned to part-time work after Mr Hunt was charged. She works 8 to12 hours a week as a receptionist. She had been receiving Centrelink payments in the form of a NewStart allowance, but had struggled with the requirement to apply for 20 jobs each month. I understand that Centrelink has removed that requirement now that she has increased her work hours slightly and provided a medical certificate evidencing that she suffers from anxiety.

36. Mrs Hunt referred to Mr Hunt's volunteer work with the Rural Fire Service over many years, and noted that as an ACT firefighter he had shared in the 1985 Canberran of the Year Award bestowed by The Canberra Times on "The ACT Firefighter". He had also been commended for his contribution to firefighting in the 2003 bushfires, during which he had taken part in saving a homestead from the fires.

37. Natasha Weatherburn, who gave a character reference for Mr Hunt, has known him since she was two years old, when her parents moved into the same street as Mr Hunt. As a child, she knew Mr Hunt as an older neighbour, and later associated with him as a work colleague and family friend. She described Mr Hunt helping her overcome her fear of dogs when she was five or six years old, and later driving her to college, which her parents had been unable to do and which saved her over an hour in commuting time each day. She described Mr Hunt as a "gruff but sociable bloke", and said that although she had associated with him from "infancy to adulthood", nothing untoward ever occurred between herself and Mr Hunt; she regarded his offending as "grossly out of character".

38. Corrective Services attempted to assess Mr Hunt for the Adult Sex Offender Program, but he declined to be assessed on the grounds that he was innocent and he would not be doing the program. He told the assessor that he had no sexual interest in children, and referred to examples of past employment and unimpugned interactions with children in various circumstances. The Adult Sex Offender Program modified assessment identified Mr Hunt as at moderate-low risk of sexual recidivism and low-medium risk of general re-offending. I am not sure whether those risk descriptions are intended to describe different levels of risk.

39. Mrs Hunt gave evidence that their son, who is now 27, had a motorbike accident several months ago. He has been released from hospital but is still confined to a wheelchair. For this reason, he has had to move in with his girlfriend's family, whose home happens to be wheelchair-accessible. During the day he receives some help from his girlfriend's mother, but would prefer not to impose on her, and would like to come home. Mrs Hunt said that she was unable to give her son any help involving lifting due to a past wrist injury, and that Mr Hunt was the only other person who could help with his needs.

40. Sexual offending against children is offending for which general deterrence is always important, given its damaging effects and the potential for it to go undetected for long periods. Sexual offending against children that is repeated over an extended period, and is therefore not the result of an ill-considered spur of the moment lapse, is also a kind of offending that may effectively be deterred in many cases.

41. Given Mr Hunt's denials of the offending in the face of the jury verdicts, it seems that personal deterrence may also be necessary, although I accept that his life has already been seriously disrupted by these charges and that he is likely to avoid putting himself into a situation again in which such accusations could be made.

42. Defence counsel noted that between 2011 when, on the mother's evidence, Mr Hunt was made aware that OM had complained to her about Mr Hunt, and late 2014 when police became involved, Mr Hunt had been in limbo about whether OM's allegations would lead anywhere. I accept that Mr Hunt was probably somewhat uncomfortable about the risk of his offences coming to light during that period of three years, but note that this did not apparently deter him from visiting the mother again at the end of those three years; this suggests to me that however he felt in 2011, he had not suffered any significant worry over most of that three-year period.

43. There may be scope in cases like this to treat official delays in dealing with complaints as some kind of mitigating factor in sentencing. However, I cannot see that an offender should be in any sense compensated for delay that essentially arises, as here, from the fact of the victims being children whose youth and vulnerability, coupled with the nature of the offences, is itself likely to delay disclosure of the offending.

44. Counsel noted that this was Mr Hunt's first experience of being in custody, and that his incarceration was causing some financial stresses for the family, his wife in particular, as well as other problems for his son. Counsel also emphasised Mr Hunt's long and distinguished record of community service as a volunteer firefighter in the ACT. There was also other evidence suggesting that Mr Hunt has a tendency more generally to try to help those around him.

45. While accepting that Mr Hunt had shown no remorse, counsel said that he had good prospects of rehabilitation having regard to his good work record, his stable marriage and his wife's continued support, and his age. He conceded, however, that the offences required a term of imprisonment to be imposed.

46. The prosecutor submitted that rehabilitation issues as such were not a basis for reducing the non-parole period in this case. She also mentioned the case of R v Edwards (1996) 90 A Crim R 510 at 515, decided by the NSW Court of Criminal Appeal, in support of her submission that the circumstances of Mr Hunt's son were not sufficiently exceptional to make it inhuman not to sentence Mr Hunt in such a way as to permit him to provide help to his son. I note that the ACT Court of Appeal has previously rejected the NSW Court of Criminal Appeal's attempt to confine the unqualified mention in sentencing legislation of the probable effect of any contemplated sentence on the offender's family to cases involving exceptional circumstances (discussed in R v Latona & McCabe [2012] ACTSC, Penfold J, 19 November 2012). However, I do not consider that, in this particular case, what appears to be relatively short-term inconvenience that is being caused to Mr Hunt's son and other members of Mr Hunt's family and others would justify me in excluding further custodial time as a sentencing option.

47. As to comparable sentences, counsel drew my attention to the matters of R v TC [2011] ACTSC, Penfold J, 28 March 2011 (TC) and R v H [2015] ACTSC 221 (R v H).

48. TC was sentenced in 2011 for several acts of indecency against his daughters constituted by touching of their genitals either with his hands or in one case with his penis. For those acts, he received sentences that started at two and a half years for the offence against a child under 10, and two years for the offences against a child between 10 and 16, which were then reduced to two years and 18 months respectively for his pleas of guilty. The other sentences were imposed for acts that were charged as incest and therefore carried an even higher maximum penalty than the sexual intercourse charges here. They are accordingly not usefully comparable.

49. In the matter of R v H in 2015, the offender was sentenced on pleas of guilty for five offences of acts of indecency on a child under 10 and three offences of acts of indecency on a child under 16. The offences were committed against his step-daughters over a period of about four years. The offences themselves were not dissimilar to the acts of indecency in this case, although they did not involve any violent behaviour, and nor did there seem to be any escalation of the offending. The offender admitted the offences when the children disclosed them, accepted full responsibility, and expressed considerable remorse. He received a total sentence of three years and two months imprisonment, with a 19-month non-parole period.

50. I have also mentioned to counsel, and considered, the two sentencing decisions in R v WR (No 4) [2015] ACTSC 211 and R v WR (No 5) [2015] ACTSC 258, particularly (No 5), which involved an offender who committed acts of indecency on two young girls to whom he had access as the godfather and long-standing family friend of one of the girls. He was sentenced to a total of 26 months imprisonment for those offences, accumulated as to 15 months on an earlier sentence of four years three months imposed for five earlier acts of indecency on a child under 16 and one of an act of indecency on a child under 10. The child victim of those earlier offences had been WR's stepdaughter. Those earlier offences had been committed in the early 1990s, and the sentences had been slightly reduced to recognise a general pattern in those days of imposing less serious sentences for such offences.

51. I accept the prosecutor's submission that there needs to be some accumulation of the assault sentences on top of the sentences for the related sexual offences, but do not consider that there should be complete accumulation.

52. Mr Hunt, please stand. I record convictions on:

(a) one charge of an act of indecency on a child under 10 years of age;

(b) two counts of sexual intercourse with a child under 10;

(c) one charge of an act of indecency in the presence of a child under 16 years; and

(d) three charges of common assault.

(a) For Count 1, the act of indecency on a child under 10 - to two years imprisonment starting on 16 December last year, so backdated, and ending on 15 December 2017.

(b) For Count 2, sexual intercourse with a child under 10 - to three years imprisonment, accumulated to add 14 months to the sentence and to be served from 16 February 2016 until 15 February 2019.

(c) For the first related offence, being the first assault - to nine months imprisonment, accumulated so as to add two months to the total sentence and to be served from 16 July 2018 to 15 April 2019.

(d) For Count 3, sexual intercourse with a child under 10 - to three years imprisonment, accumulated to add six months to the total sentence and to be served from 16 October 2016 to 15 October 2019.

(e) For the second assault - to six months imprisonment, accumulated so as to add one month to the total sentence and to be served from 16 May 2019 to 15 November 2019.

(f) For the third related offence of assault - to 10 months imprisonment, accumulated so as to add two months to the total sentence and to be served from 16 March 2019 to 15 January 2020.

(g) For Count 4, an act of indecency in the presence of a child under 16 - to 18 months imprisonment, accumulated so as to add 11 months to the sentence and to be served from 16 June 2019 to 15 December 2020.

54. That gives a total sentence of five years imprisonment which will be backdated, as I have indicated, to 16 December last year, when you were remanded in custody, and it will therefore expire on 15 December 2020.

55. In determining a non-parole period, I have had particular regard to:

(a) your age;

(b) your significant contribution to the community, which in my view goes some way beyond mere good character, as a volunteer firefighter and also through your more general tendency to help out others around you; and

(c) finally, the fact that you have been identified as a prisoner at risk of self harm and, I am told, will need to retain that status after sentence, which may mean that your time in custody will weigh somewhat more heavily on you than it would on some other prisoners (R v Verdins [2007] VSCA 102; (2007) 169 A Crim R 581).

56. For those reasons, I set what in the circumstances is a fairly low non-parole period of two years and six months, which will expire on 15 June 2018, meaning that you will be eligible for parole in two years and four months time. Although, as I say, that period is relatively short, I expect that it would provide adequate time for you to complete the Adult Sex Offender Program while in custody, should you agree to do so, and that may be relevant to your eventual release on parole.

57. Finally, I note formally that you should again be marked as a prisoner at risk.

I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.