Director of Public Prosecutions v Hamilton

[2025] VCC 256

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT BENDIGO

CRIMINAL JURISDICTION

CR-23-01178

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN HAMILTON

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Bendigo
DATE OF HEARING:	11 March 2025
DATE OF SENTENCE:	13 March 2025
CASE MAY BE CITED AS:	DPP v Hamilton
MEDIUM NEUTRAL CITATION:	[2025] VCC 256

REASONS FOR SENTENCE

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Subject:Plea - sentencing

Catchwords:          Use carriage service to transmit indecent communication to person under 16 years - sexual penetration of child under 16

Legislation Cited: 

Cases Cited:

Sentence:2 years' imprisonment, non-parole period 16 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Pirrie	Office of Public Prosecutions
For the Accused	Mr S. Kelly	Stary Norton Halphen

HIS HONOUR: 

1Benjamin Hamilton, you have pleaded guilty to an offence of using a carriage service to transmit indecent communications to a person under the age of 16 years, which is Charge 1 on the indictment.  The maximum penalty for this offence is imprisonment for seven years.

2The offending occurred between 29 January 2016 and 30 April 2018 and it is charged as a rolled up charge involving on the first occasion, 29 January 2016, you sending a photograph of your penis to the victim via Skype.  That was accompanied by text messaging which indicated that you were well aware that you needed to keep that kind of communication secret.  I am not convinced that you were unaware that the victim was well under the age of 16 at the time of those communications.

3Indeed, all of your communications with her indicated that you were seeking to keep the discussions concerning sexualised conduct between you secret, because you wanted to avoid either you, or her, or both of you, getting into serious trouble. 

4That position prevailed up to and including the events the subject of Charge 2, which involved a rolled up charge concerning two occasions upon which you took part in an act of sexual penetration with the victim at a time when she was under the age of 16 years.  Those events occurred on 6 November 2017 and on or about 30 August 2018.  You were explicitly told between those two dates that she was underage.  You were undeterred in going through with the conduct the subject of the second occasion, which was on or about 30 August 2018.  The maximum penalty for this offence is imprisonment for 15 years.

5The prosecution tendered and relied upon a prosecution opening for the plea – Exhibit A.  It sets out the circumstances in which you committed each of the acts that constitute the rolled up Charges 1 and 2.

6The prosecution also tendered a victim impact statement which your victim read to the court.  That became Exhibit B on the plea hearing.

7Your counsel provided me with a outline of submissions in mitigation (Exhibit 1), a report from Mr Martin Jackson, neuropsychologist (Exhibit 2), and a letter from a Ms Kolbe dated 21 January 2025 (Exhibit 3).  He added to his written submissions with oral submissions.  In essence, he sought to persuade me that it was open to me to impose a community correction order rather than a term of imprisonment.  He relied upon your conduct since the offending which, he submitted, showed every sign of your being well on the way to rehabilitation.  You were, it was submitted, unlikely to reoffend.

8Your counsel submitted that I should give you full credit for the utilitarian value of your plea of guilty and the fact that a plea of guilty generally and in this case indicates a degree of remorse for your conduct.  I note though that you had plenty of opportunity to reflect on your conduct during the period covered by the offences.  You were explicitly aware of your victim’s age being under 16 at the time of the second incidence of sexual intercourse with her.

9It was submitted on your behalf that there were many aggravating features that are sometimes present in cases such as this, which were absent in this case.  I accept in general terms that each of those submissions is correct. 

10It was accepted that there were some factors that increased the objective gravity of the offending, namely, that your victim was vulnerable, that she had psychological issues and family instability, that the offending was reasonably protracted in duration between the outside dates of the two offences, and that no condom was used on either occasion of sexual penetration.

11Your counsel dealt with your personal history, which is set out in more detail in the neuropsychological report.  The family situation was, at the time of the offending, somewhat complicated.  Nevertheless, none of that material could explain or excuse your conduct. 

12You were educated to Year 12 at the Bendigo Senior Secondary College.  You were subject to extensive bullying, and your time at school was unhappy.  You went on to complete a Certificate III in Hospitality and a Certificate III in Horticulture.

13After leaving school you worked in various roles and ultimately you were working as a casual greenskeeper and wicket curator at a local cricket club.  You aspire to work full time in groundskeeping.

14You have been in an intimate relationship with Ms Kolbe for the last three years and you are currently engaged to be married.  That sets the scene for a new beginning and a life ahead of you which would support the proposition that you are a good candidate for continued rehabilitation and unlikely to offend again in this way.

15So far as your mental health is concerned, it is not suggested that there is any issue regarding mental health that is mitigatory in this particular case.

16It was submitted that general deterrence and denunciation, although prominent sentencing purposes for sexual offending against a child, should be balanced against your good character, your absence of prior convictions and your lack of convictions since the offending conduct which support the conclusion that I should extend a measure of leniency.  Your present lifestyle, pathway and new relationship should give the community comfort that you do not represent a threat to the community as a sexual offender.

17It was submitted that your plea of guilty represents an acceptance of criminal responsibility and further adds to a positive finding as to your prospects of rehabilitation.

18It was submitted that I should find that the objective gravity of the offending falls within the low to mid range.  If that is correct then it seems to me that it is more towards the middle of the range than the low end of the range.  But these questions do not invoke an exact science.  The overriding consideration here, which needs to be given proper value in determining an appropriate sentence, is general deterrence.  That is, deterring other people from committing offences of this kind. 

19The age gap between you and your victim was not as great as it is in some cases, but it is not insignificant.  You were old enough to know better.  As I have indicated already, you showed that you knew perfectly well that it was necessary to conduct your activities in secret and to conceal what you were doing.  There were glimpses of your intentions and conduct that were revealed to adults and you were warned of the importance of avoiding that kind of behaviour before you committed the final act the subject of Charge 2 on the indictment.

20Doing the best I can to marry all of those sentencing considerations I sentence you as follows.

21On Charge 1 you are convicted and sentenced to imprisonment for a period of nine months.  That sentence commences today.

22On Charge 2, you are convicted and sentenced to imprisonment for two years.  That sentence also commences today. 

23Therefore, the total effective sentence is two years' imprisonment.

24I fix a non-parole period of 16 months.

25I decline to make a recognizance release order in respect of Charge 1 pursuant to s19AC(4)(b) of the Crimes Act 1914 (Cth) because you are expected to be serving the State sentence imposed on Charge 2 after the end of the sentence on Charge 1, which comes under Commonwealth law.

26I declare pre-sentence detention of two days to be reckoned as time served on the sentence that I have imposed and to be deducted administratively.

27But for your pleas of guilty I would have sentenced you to imprisonment for a period of two years and eight months with a non-parole period of one year and 10 months.

28You will be subject to the reporting obligations arising from the Sex Offender Registration Act 2004. Your reporting period will be for life. You will receive a document setting out the nature and extent of those obligations.

29Are there any other matters that I need to deal with?

30COUNSEL:  No, Your Honour.

31HIS HONOUR:  Your client is about to be given the document relating to his reporting obligations and I think he is required to sign a receipt of that document.

32MR KELLY:  Yes, Your Honour.

33HIS HONOUR:  So if you wouldn't mind supervising that.

34MR KELLY:  Certainly.

35HIS HONOUR:  That completes the sentencing proceedings.

36COUNSEL:  As Your Honour pleases.

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