Director of Public Prosecutions v Hickman (a pseudonym)
[2020] VCC 513
•29 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
SEXUAL OFFENCES LIST
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PHILLIP HICKMAN (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE HIGHAM |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 April 2020 |
DATE OF SENTENCE: | 29 April 2020 |
CASE MAY BE CITED AS: | DPP v Hickman (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2020] VCC 513 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – sexual penetration of a child under 12 – sexual activity in
the presence of a child under 16 – guilty verdict
Legislation Cited: Crimes Act 1958 (Vic) (as amended by the Crimes Amendment (Sexual
Offences) Act 2016 (Vic)), ss 49A, 49F(1); Sentencing Act 1991 (Vic); Sex Offenders Registration Act2004 (Vic)
Cases Cited:
Sentence: Total effective sentence of 9 years and 7 months’ imprisonment with a
non-parole period of 6 years and 2 months’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D Cordy | Ms A Hogan, Solicitor for Public Prosecutions |
For the Accused | Mr D Cronin | Farrelly Legal |
HIS HONOUR:
1Phillip Hickman,[1] on 19 February 2020, following a trial, you were found guilty of two charges of sexual penetration of a child under 12 (Charges 2 and 4), and two charges of sexual activity in the presence of a child under 16, (Charges 6 and 8).
[1] Phillip Hickman is a pseudonym.
2The maximum penalty for sexual penetration of a child under 12 is a term of imprisonment of 25 years. The maximum penalty for sexual activity in the presence of a child under 16 is a term of imprisonment of 10 years.
3Your victim, Hannah Betts,[2] was born in 2007 and was aged between 10 and 11 at the time of your offending against her. Tendered on the plea as exhibit 1 was a summary of the prosecution opening for the trial. An addendum summary was exhibit 2. Those two documents, together, set out the full details of your offending. I annex a copy of those documents to these sentencing reasons.
[2] Hannah Betts is a pseudonym.
4In brief, the circumstances of your offending were as follows.
5Your son, Michael Hickman,[3] was in a relationship with Hannah’s mother, Melissa White[4], from approximately September 2016 to September 2017. They lived in Boorcan, Victoria, and Hannah resided with them. It was during the course of the relationship between your son and Melissa that you were introduced to Hannah. Unfortunately for Hannah, her mother had struggled with drug addiction and mental health issues throughout her life. The relationship between Hannah's mother and your son was a difficult one, punctuated with episodes of family violence.
[3] Michael Hickman is a pseudonym.
[4] Melissa White is a pseudonym.
6You offered Hannah friendship, and you would take Hannah with you to various locations throughout western Victoria in the course of your employment as a horse farrier. You would also take Hannah to visit your family relatives throughout the region. Hannah enjoyed going with you on these trips. She enjoyed the attention, care and treats that you provided for her.
7Michael's relationship with Hannah's mother ended in September 2017 and Hannah went to live with her maternal grandparents, Kay and Lester Marshall.[5] Shortly thereafter, you turned up at their home with Hannah’s bicycle and some other items which had been left by Hannah at your son's address. You introduced yourself to the Marshalls and offered to continue taking Hannah with you on your work trips. The Marshalls were grateful for the offer. They had noticed how you interacted with Hannah, and that Hannah seemed pleased to see you and was keen to go with you. They gave you their blessing.
[5] Kay Marshall is a pseudonym. Lester Marshall is a pseudonym.
8However, on these trips there came a time when you began to make sexualised comments in Hannah's presence. You showed Hannah pornographic magazines, which you kept in your vehicle. Your sexualised comments became more direct and importuning, and on occasion you would attempt to touch Hannah on the intimate parts of her body. These facts provide context for the charged offending. They do not attract a separate penalty, nor do they aggravate the charged offending.
9All three occasions of your offending against Hannah occurred when she was accompanying you on one of your trips. On a date between the beginning of July 2017 and the end of December 2018 you drove Hannah to an abandoned tennis court somewhere in western Victoria. While Hannah was sitting down on a bench you pulled down her jeans and underwear and took them off. You rubbed oil over Hannah's stomach and on your own penis and then inserted your penis into Hannah's vagina a number of times. This offending underpins Charge 2.
10On another occasion, between July 2017 and December 2018, you drove Hannah to Lake Bullen Merri in Camperdown. Whilst you and Hannah were seated in a rotunda you used a portable DVD player that you had retrieved from your car to play a pornographic DVD. You insisted that Hannah watch the pornographic DVD with you (Charge 6). You then began touching Hannah and inserted your penis into her vagina a number of times (Charge 4).
11On another occasion at Peterborough between July 2017 and end of December 2018 you were seated in your car next to Hannah when you unbuttoned your pants and pulled out your penis and began masturbating. You were telling Hannah, 'this little guy is waiting for you'. This is Charge 8.
12On 25 February 2019 Hannah disclosed to her grandmother, Kay Marshall, that you would force her to have sex with you. Hannah did this by typing a message into Ms Marshall’s phone and then showing it to her. Police were then informed and a video and audio recorded (VARE) statement was taken from Hannah at her grandparents' home on 3 March 2019. A further statement was conducted on 13 May 2019.
13You were arrested and interviewed in March 2019. In the interview you denied all the allegations of the offending, as was, of course, your right. Your trial commenced in Warrnambool on 11 February 2020 and guilty verdicts were returned on 19 February 2020 on charges 2, 4, 6 and 8. The jury were discharged and verdicts of not guilty were entered on my direction on charges 1, 3, 5 and 7.
14Tendered on the plea as exhibit 3 was a Victim Impact Statement from Kay Marshall, wherein she speaks of the shock, anger and emotional confusion she felt upon hearing of your offending against Hannah. She has lost her trust in others as a direct consequence of the betrayal of the trust that she placed in you.
15I turn now to your personal circumstances.
16You were born in 1951 and you are now 69 years of age. You were aged between 65 and 67 at the time of your offending. You were born in Yallourn, the oldest of nine children. As a child you lived with your father’s drunken assaults upon your mother and upon you. Such assaults were a constant feature of your young life when your father was drunk. Your father walked out of the family when you were 14. You moved to Winchelsea with your mother and siblings. You left school at the age of 15 and started working to help support your mother and her large family. Tragically, your mother died at the age of 41 in childbirth.
17You have five children from two long-term relationships and 26 grandchildren living all over western Victoria and with all of whom you had a positive and present relationship prior to your arrest on these matters. You have worked on the land and with horses for your entire working life. As well as working as a farrier, dairy hand and stockman, you have also trained and worked as a jockey. You have been a horse owner, although these latter two pursuits brought with them little success.
18Your body now shows the physical signs of a life of hard labour and it is unlikely that you would be physically able to work as a farrier again. You have also lost your trainer's accreditation following your conviction, and that is a loss that you feel keenly.
19Alcohol has been a constant in your life, use turning into abuse as you grew older. Although working hard all your life you have not been richly rewarded and there was a time when you were effectively homeless before being taken in by your youngest sister, Carole,[6] at her home in Camperdown.
[6] Carole Lehming is pseudonym.
20Tendered on the plea as exhibit 6 was a collection of references from both family and clients who over the years have become friends of yours. All speak highly of you and of the support you have given them, and all speak of their continued support for you. Your younger sister, Carole, also speaks warmly of the contribution you made to the family when she was young, and that from her earliest days you were there for all your siblings. I was told that upon your eventual release you would go and live with Carole. You will have the continued support of family and friends.
21Exhibit 5HB was a report from Mr Jeffrey Cummins, clinical forensic psychologist, dated 21 April 2020. He confirmed your family history and personal narrative and noted that you continued to maintain your innocence of the offences of which you have been found guilty. You indicated, however, that you were prepared to participate in offence specific treatment. Mr Cummins' opinion was that you presented a low risk of reoffending.
22You have prior criminal matters of dishonesty from over 40 years ago which are not relevant to my sentencing exercise. More recently you have been in front of local courts for driving with excess alcohol. Of your prior matters
Mr Cummins noted:… In my opinion at interview he played down the significance of those prior convictions. He stated that he did have a number of prior matters for drink driving and stated he had never thought of himself as having a drinking problem. In my opinion it is probable he has suffered from an alcohol use disorder and I am therefore of the opinion he may have had an alcohol use disorder at the time of his alleged offending.
Such a disorder would be neither causative nor mitigatory of your offending. Mr Cummins remarked upon your very casual attitude to the jury verdict, your willingness to participate in offence specific treatment and preparedness to abide by all standard conditions of being on the sex offence register. You told Mr Cummins you assumed that you would cope with the inevitable sentence, 'in [your] stride'.
23I turn now to the submissions of counsel.
24On your behalf Mr Cronin accepted that a custodial sentence was the only appropriate disposition, having regard to the objective gravity of the offending and the sentencing purposes of general deterrence, denunciation and just punishment. In concise and helpful submissions, he submitted that your offending was situational rather than premeditated. He conceded that your offending represented a gross breach of the trust placed in you by both Hannah and her grandparents. He conceded that Hannah was a vulnerable child. He submitted that the familial connection was the context for you meeting Hannah and that I could not be satisfied to the relevant standard that you had pursued a friendship with Hannah from the start so as to provide you with an opportunity for your abuse of her. I agree with that submission.
25He noted that your offending was absent some aggravating features so often encountered in offending of this kind. There was no filming of your offending. There was no further humiliation of your victim over and above the physical acts representing the commission of the offence. The offending was not premeditated. No threats or coercion were used by you to overbear Hannah's will. There was no use of physical force over and above that necessary to commit the penetrative offence. You have no relevant prior criminal offending. There was no evidence of ejaculation although Mr Cronin conceded that no protection was used by you, which of itself was an aggravating feature. He submitted that your offending fell in the mid-range of seriousness of offending of this kind. He submitted that on your eventual release you will return to a community who will know of your crimes. You will not be allowed unsupervised access to children. Your age and your assessed low risk of offending reduce the need for specific deterrence and community protection in your case.
26As to your prospects for rehabilitation, he conceded that there was no remorse. However, he pointed to your willingness to undergo sex offender treatment and to the continued and sustained support of your family and friends as being protective factors, and I give such weight as to this submission as I am able.
27As to the impact upon the custodial regime of the current pandemic Mr Cronin submitted that the challenges and uncertainties of COVID-19 within the prison environment made prison more onerous for you. However, seemingly contrary to that submission, Mr Cummins' report noted that you are neither anxious nor depressed and are apparently dealing well with the prison environment. Nonetheless, by virtue of your age, and your status as a lifelong smoker, you would be in a high-risk category in the event of an outbreak. I give such weight as I can to that submission.
28Mr Cronin reminded me that there was but one victim with three discrete instances of offending. He submitted there should be a significant degree of concurrency between Charges 4 and 6, both of which were committed on the same occasion and could be said to be part of the same event and he reminded me, correctly, of the principle of totality.
29On behalf of the prosecution Mr Cordy submitted that general deterrence, denunciation and just punishment are the primary sentencing purposes in your case. This was, he said rightly, serious offending upon a vulnerable victim, representing a significant breach of trust. There was an age disparity of more than 50 years between yourself and Hannah. With that age disparity came authority, enforced by the familial, quasi-grandparent relationship. Your offending was not an isolated incident, rather, it was persistent. It was, he submitted, in the mid to upper range of seriousness for offending of this kind.
30Mr Cordy submitted that your well-earned reputation as a farrier in the community enabled your offending and thus, I should not have regard to your previous good character, pursuant to section 5AA of the Sentencing Act 1991 (Vic). As I made clear in the course of argument, I did not find this to be a persuasive argument. Mr Cordy accepted the opinion of Mr Cummins as to your low risk of reoffending. He reminded me of the serious offender provisions applicable in your case but did not seek a longer than commensurate sentence. He submitted there should be significant cumulation subject to the overarching principle of totality. His ultimate submission was that these were serious matters requiring a significant term of imprisonment, although he fairly conceded that a shorter than usual non-parole period could still sufficiently address all relevant sentencing purposes.
31Mr Hickman, offending against children will always be viewed by the courts as serious offending. There has been a growing recognition of the lasting impact that such offending has upon children and how it can often lead to lives that are not fully lived. Children who have been sexually offended against have had their innocence and their sense of self stolen from them. They blame themselves for acts committed against them by adults and for which acts they are completely without blame. They struggle to engage in healthy relationships. They struggle to find their place in the world. Crimes against children are crimes against our common future and our common humanity. The courts have repeatedly stated that they will do everything within their power to protect children.
32Hannah Betts had come into your life through her mother's relationship with your son, Michael. Her mother had struggled with drug issues and Hannah had, in consequence, been deprived of the stable family environment which is every child's right. She was a vulnerable child, craving love and stability. You began to take her with you on your work journeys and on other trips and, in so doing, you provided her with a space where she felt valued and wanted. I accept that in the early days your affection for her was genuine. When Hannah moved to her maternal grandmother's home you continued to ask her to come on your journeys with you. It is during three of those journeys that you offended against her.
33You maintain your innocence, as you are of course entitled to do, but I can thus find no evidence of remorse. I sentence you on the basis of the jury's verdict. It is not clear to me what led you to move from being a carer of Hannah to being her abuser, nor what role alcohol might have played. It is true that your offending was absent many of the aggravating features so often encountered in offences of this kind. Nonetheless on two occasions you penetrated Hannah's vagina with your penis without any protection, thereby exposing Hannah to the risk of a sexually transmitted infection. On one of those occasions you compelled Hannah to watch pornography prior to your penetration of her. On another occasion you masturbated in front of Hannah. She was at all material times aged between 10 and 11.
34What is clear is that in so offending you have grossly betrayed her trust in you and the trust placed in you by Hannah's grandparents. You well knew of Hannah's vulnerabilities and yet you used her in satisfaction of your own sexual desires, giving no thought, I find, to the impact of your actions upon the child whom you had befriended and then objectified. This was not an isolated incident. Your actions normalised that which was abnormal and which was deviant. You were more than 50 years older than your victim. Your advanced years placed you in a position of authority. Your offending was exploitative, it was callous and your moral culpability for the offending is high.
35Mr Hickman, the sentencing process is not about revenge and it is not about retribution. The sentencing process cannot give back to your victims that which they may feel has been taken from them. In sentencing you I must have regard to a range of different factors. I must give effect to the principle of general deterrence. That is, I must deter others from behaving as you did. I must consider specific deterrence, that is the need to deter you from any repeat of such offending. I must consider the need to protect the community from you. I must express the community's denunciation of your conduct and I should promote, if possible, your rehabilitation. I must take into account the effect of your crimes upon your victim. I must have regard to the statutory maximum penalties for the offences to which you were found guilty and I must have regard to current sentencing practices.
36In short, I must try to balance your personal circumstances with the circumstances of your offending. I am required by law to pass no longer a sentence than is necessary. Clearly, principles of general deterrence, denunciation, just punishment and protection of the community are to the fore in my sentencing exercise. On Charges 6 and 8 I am required to sentence you as a Serious Sexual Offender. Ordinarily that would mean that I would be required to impose a sentence that is cumulative upon the other sentences. Mr Cordy, on behalf of the prosecution, has not sought to persuade me that I should impose a disproportionate sentence and I do not propose to impose a sentence that involves total cumulation. It is the duty of the court to impose no longer sentence than is necessary in all the circumstances. It seems to me that justice can be done in this matter, and the public can be adequately protected, by a measure of concurrency that I think adequately deals with all relevant sentencing considerations.
37I am satisfied that your relative advanced years, the fact that you will return to a community who will know of your past crimes, and the continued support of your family and friends, reduce to a significant extent the need for specific deterrence and protection of the community. Likewise, those factors will tend to your rehabilitation, and this has also enabled me to direct a shorter than normal non-parole period than I would otherwise have done. Having regard to the principle of totality I have moderated the orders for cumulation that I would otherwise have made. I have regard to your physical vulnerabilities and risk factors should there be an outbreak of COVID-19 within the custodial sentence. However, as you must be only too well aware, the objective gravity of your offending is such that it can only be met by a significant term of imprisonment.
38Mr Hickman, I do not ask you to stand but I am now going to pass sentence upon you.
39On Charge 2, sexual penetration of a child under age 12, you are sentenced to a term of imprisonment of six (6) years and four (4) months.
40On Charge 4, sexual penetration of a child under the age of 12, you are sentenced to a term of imprisonment of seven (7) years and two (2) months.
41Charge 6, sexual activity in the presence of a child under the age of 16 years, you are sentenced to a term of imprisonment of fourteen (14) months.
42On Charge 8, sexual activity in the presence of a child under the age of 16 years, you are sentenced to a term of imprisonment of eighteen (18) months
43I order that two (2) years of the sentence on Charge 2; five (5) months of the sentence on Charge 8; run cumulative to each other and cumulative to the sentence on Charge 4. The sentence on Charge 6 will run concurrently to the sentence on Charge 4.
44This makes a total effective sentence of nine (9) years and seven (7) months’ imprisonment. I direct that you must serve a term of six (6) years and two (2) months before you are eligible for parole.
45Pursuant to section 18(4) Sentencing Act I direct that you have served 71 days of the sentence that I have passed upon you and I direct that this be entered into the records of the Court.
46On Charges 6 and 8 you are sentenced as a Serious Sexual Offender and I again that this be entered into the records of the Court.
47Pursuant to the Sex Offenders Registration Act2004 (Vic) you are now a registrable offender and subject to the provisions of the Act. The period of registration is for the remainder of your life. You are required to sign a document acknowledging that you have received a copy of your obligations.
48Mr Cronin, those documents were emailed to Hopkins this morning. Mr Hickman, can I ask you, have you received any documents to be signed today in the course of today?
49ACCUSED: Yes, sir.
50HIS HONOUR: You do. Do you have those documents in front of you?
51ACCUSED: Yes, sir.
52HIS HONOUR: All right, and have you signed them, Mr Hickman?
53ACCUSED: I think so, Your Honour.
54HIS HONOUR: You have done? All right. The reason why those documents need to be signed is because the signing of the documents shows that you recognise that you have been provided with the obligations that accrue to you under the Act. I know that Mr Cronin will be in touch with you and will explain them to you, and I would be grateful to you, Mr Cronin, for doing that, and in due course, Mr Hickman, they will be sent back to the Court for lodgement.
55I make an order pursuant to section 464ZF for the taking of a forensic sample. Mr Hickman, that means an officer at a suitably appointed time will come to you and want to take a forensic sample from you. That just means a buccal swab in the mouth and to take a sample of your saliva. I have to tell you that should you refuse to provide a sample the officers can use such force as is reasonably necessary to take a sample from you.
56I also make the disposal order sought and I understood, Mr Cronin, that to both those orders, there was no objection.
57Thank you very much, Mr Cordy, for your attention and your attendance this afternoon. Thank you very much, Mr Cronin. I am going to switch off the link. I will stand down. Thank you, all. You have a good afternoon.
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