Director of Public Prosecutions v Hill
[2022] VCC 1994
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL DIVISION
Case No. CR-18-02094
Indictment No. J11444757A
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BEN HILL |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 October 2022 | |
DATE OF SENTENCE: | 5 October 2022 | |
CASE MAY BE CITED AS: | DPP v Hill | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1994 | |
REASONS FOR SENTENCE
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Subject:Possession of child abuse materials; 30 years of age at time of offending; 36 years of age at sentence; Short criminal history; Late plea; Worboyes v The Queen [2021] VSCA 169; COVID-19; Delay; Risk of deportation. Dead time
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Thomas | Director of Public Prosecutions |
| For the Accused | Ms M. O’Brien | Slades & Parsons |
HIS HONOUR:
1Ben Hill, you have pleaded guilty to one charge of possession of child abuse materials and have admitted a short criminal history.
2The maximum penalty is 10 years' imprisonment.
3You are 36 years of age now but were 30 at the time of the crime committed back in January 2018.
4The prosecutor Ms Thomas opened this matter to me this morning in accordance with a written summary dated 29 November 2021. She asked me to have no regard to paragraphs 8-13 and I won’t. Those matters had arisen in the earlier trial and it seems likely to me have not been acted on by that jury. Ms O'Brien who appears for you told me it was an agreed opening and so that document has been marked as Exhibit A on the plea.
5There is no utility in my setting out the full facts in my reasons for sentence. The agreed document does that, and of course I will sentence in accordance with it.
Facts
6Very briefly stated though, police came to investigate you in relation to child sex allegations made by a 10 year old girl who was the daughter of a person that you had met online. On 17 January 2018, the police in the course of that investigation executed a search warrant upon the premises where you were then living and they seized a number of devices which upon analysis contained a number of child abuse images, both photographs and also videos.
7The summary sets out the number of the images at p2 of the summary, the device upon which the particular image was found and the categorisation. There were some 103 items including about 12 videos. Some more detail was provided to me in the course of the plea as to the file names of a number of matters from your devices spelling out that there were children with a variety of ages, but obviously children. The Skype conversations as set out in para 16 of the agreed opening cannot be connected up to any of the images the subject of this charge, though they are obviously concerning discussions by way of context. These are discussions you are having in 2013 with other people about sleeping with them and their children, playing with their children on camera, or requesting to see their children on camera. You were interviewed on tape and admitted possessing pornography but not child abuse materials.
8Now of course the child sex allegations which the police were investigating have gone the full circle with a jury disagreement in early 2019, a conviction by a second jury later that year, a substantial sentence imposed by that trial judge in August of 2020, a successful appeal against conviction in the Court of Appeal in November 2021 and acquittal yesterday (4 October 2022) by the third jury in that subsequent retrial which had been ordered by the Court of Appeal and which I presided over.
9As to the matter I am now dealing with, you pleaded guilty late in the piece on 18 October 2021. I note that that was prior to the Court of Appeal decision. The plea has since awaited the finalisation of the sexual penetration allegations for obvious reasons. There was no point a judge hearing the plea and sentencing you in relation to this discreet matter while the other matter was waiting in the wings.
10I will sentence in accordance with the more detailed agreed summary that is marked as Exhibit A.
11As a result of that tortured court chronology that I have spelt out broadly, you spent a large amount of time in custody, some formal or strict s18 pre-sentence detention for this matter but much time that is not. Well over 700 days falls into that later category.
In Mitigation
12Ms O'Brien conducted the plea on your behalf earlier this morning.
13She relied upon a 5-page written outline which was marked as Exhibit 1.
14There were two reports from a psychologist Ms Laura Fleming, one was an addendum, as well as two reports from a psychiatrist, Dr Begic and one report from a GP, a Dr Emma Law. Finally, there were references from Ms Phung, from your mother and one from one of your former girlfriend's, Ms Pastén.
15Ms O’Brien told me about your personal background. There was much more detail though in her written submission and also in the report of Ms Fleming. She made some submissions as to the relative seriousness of the offence and the relevant sentencing purposes in play for a case such as this. You will recall her referring me to a decision of Garside. She made submissions as to your risk of reoffence and your prospects of rehabilitation.
16She relied chiefly upon the following matters in mitigation:
· Your guilty plea in the midst of the global pandemic;
· The presence of some limited remorse;
· The delay in this matter being finalised which gave rise to that sizeable quantity of 'dead time' , which was relevant to my task;
· The impact of COVID-19 upon your custodial experience; and
· The risk of deportation in this case, irrespective of the actual sentencing outcome given that your visa has already been cancelled.
17She was conceding the inevitability of a prison term for this offending, but argued that in the setting of this case with so much 'dead time' that a sentence equating to your formal pre-sentence detention would be open in the sound exercise of my sentencing discretion.
Prosecution
18The prosecution argued through Ms Thomas that prison was required here, but whether more prison was required was a matter for the Court. The Crown accepted though that the dead or Renzella[1] time that I have spoken was a matter of some significance here. They took issue with the submission that had been made, at least in the written document, as to your low level of risk.
[1]R v Renzella [1997] 2 VR 88
19Before dealing with these various matters, I will turn to your background but I will do that pretty briefly actually.
Background
20The details of your background, as I say, have been spelt out more than adequately in the first report of Ms Fleming, which is marked as part of Exhibit 2. Ms O'Brien added to that in her written and also her oral submissions. I have no reason not to accept what I have been told of your family and personal background and I just see no need to restate to you your own background. It is a waste of your time and mine. It plainly, from reading the report of Fleming, was not the easiest of early childhoods and of course I take into account your background in a general way consistent with your counsel's submission in that respect.
21I will provide only a brief summary of that background and as I say, I do not see the need to mention some of those early childhood matters that are spoken of in that report. I take them into account. You were born in August 1986. You are now 36 years of age. You were born in Northern Ireland. Your parents separated and your mother's new partner was an Australian and you and your mother and her new partner migrated to Australia when you were still a child. There are two different ages, it is not critical which was correct, whether nine or 11 it matters not one jot. You were a young child. You had trouble with that aspect of dislocation really, moving from one country to another at that age and you had trouble fitting in at school. You were expelled from school at Year 10 level and you had what seems to me to be a pretty fragmented and patchy employment history in a range of generally unskilled jobs.
22You have had a serious back issue arising from driving a forklift, not an accident but more degeneration arising from that occupation, so pain management has been an issue over the years. You have a small number of prior convictions but I have looked at those and they have absolutely no relevance to my task at all; they simply impede your counsel from saying you have no prior history. You have got prior history, but it is irrelevant. There have been drug and alcohol issues though and significant issues from time to time. There is mention in one of the reports of Ms Fleming of you drinking something like 190 standard drinks a week in some phases of your life.
Custodial placement
23I was told about the details of your custodial placement and experience whilst in custody. I have been taken to the chronology by each side. As I have said you have been in custody for 1,059 days but only 352 days of those relate to the matter I am dealing with. So I can only make a s18 declaration to the tune of 352 days in this case.
24Let me turn then to the other matters in mitigation.
Guilty plea
25The first of those is your guilty plea.
26You have pleaded guilty to this matter. You have done that at a late stage, but as late as the plea was, it must still be tangibly and adequately recognised.
27You have still taken responsibility for your offending so there is a utilitarian benefit in your pleading guilty. Witnesses have not been required to attend to give evidence at court in relation to this case. The community has been saved the time, the cost and the effort that would be associated with the conduct of a committal hearing in the Magistrates' Court or for that matter, a trial up in this court. There was a committal hearing, I am awake to that fact, but I have read that transcript and it related to the other allegations of which you have been acquitted
28I must reward you for facilitating the course of justice.
29There is also a heightened value for a guilty plea, even a late one, when it is offered up in the midst of the global pandemic. That is for the many reasons mentioned in that decision you heard referred to by your counsel, the case of Worboyes.[2] Your case is not part of the very large backlog that has arisen amidst the global pandemic, so a guilty plea is especially valuable in such a setting as this and I pay regard to that authority.
[2]Worboyes v The Queen [2021] VSCA 169
Remorse
30Your counsel argued that there was some remorse evidenced here. I asked her to take me to evidence of that remorse. There is some reference to a sense of shame referred to in the letter of Ms Phung but that was written at a time prior to any plea being entered in this matter. You denied this offending in a defence response filed on your behalf and in the earlier police interview that was conducted. You have denied any use or possession of child abuse material in discussions with Ms Fleming in those later consultations, but of course you have taken responsibility when you pleaded guilty as you did last year in October.
31A guilty plea is often indicative of some contrition or remorse. It is not always so. I do take note of the timing. This plea was entered just before the Court of Appeal decision so there was nothing by way of that decision that tipped the scales.
32I am prepared in the circumstances then to find the existence of some remorse here and I take that into account in your favour.
Rehabilitation
33I turn now to your prospects of rehabilitation.
34I have your guilty plea. I have the absence of any relevant prior criminal behaviour and of course I must honour the verdict of the jury, delivered yesterday, in terms of the sexual penetration charges. You were acquitted of those other matters and otherwise that would have pointed irresistibly to a sexual attraction to children had you been convicted of those acts. Well, you were acquitted. You have few skills and you have a pretty poor or patchy past employment record, serious enough physical issues and serious issues in the past with drugs and alcohol.
Ms Fleming - Dr Begic - Dr Law
35As to the reports that have been filed, I see no great need to descend to any detailed analysis of the reports of Ms Fleming or the psychiatrist or the GP. I read those matters earlier this morning, I have read them again in the break since we adjourned for sentence. I take those material into account. They are not relied upon as in any way enlivening any of the principles from the well-known decision of Verdins v The Queen.[3] There was discussion in the course of the plea, initially Ms O'Brien sought to rely upon the fifth limb of that case, but on reflection when she considered the vacuum in the evidence she withdrew that submission; so there are no Verdins limbs engaged here.
[3]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (“Verdins”)
36Still the reports are of value to me. They set out your background. They set out some of the issues that you have had over the years in terms of mental health issues and also of course those physical issues that I have spoken of relating to your back. They also cover aspects of the drug and alcohol problems and pain management issues as well. What they do not do, is provide any explanation for this offending. They do not even cover that of course. They were not prepared in relation to it. So it is a bit difficult for me not to be guarded as to your future prospects.
37There is a risk assessment in the report of Ms Fleming, but it can have no real validity to my task and your counsel accepts that that is so. That risk assessment was conducted in relation to the other matters which you had denied and in a setting where you had denied possession of the child abuse material. It is not even clear whether Fleming was awake to it, but even if she was, she has not acted on that or provided an opinion in relation to this matter.
38Well you admit that possession by your guilty plea and of course the expert has not had any capacity to provide an opinion in the face of such an admission as constituted by your plea. Likewise, the conceded Skype conversations in 2013 referred to in paragraph 16 are extremely problematic and she has not reflected on that at all. You were, it is plain enough, back in 2013 as a grown adult, as a 27-year-old, actively seeking material and connection to children. So that is before me as to context alone. As I have said earlier it cannot be connected up to any of the images you ultimately possessed but it is disturbing nonetheless.
39It is impossible for me to conclude that a low risk exists in this case. It is actually impossible for me to accurately gauge the level of your risk. As far as I can determine, I believe that you have some prospects of rehabilitation but also a risk of reoffending in this way into the future. It is not an illusory or negligible risk by any stretch of the imagination.
COVID-19: Increased burden
40I turn then to the COVID-19 submission made by your counsel. There is just no doubt that the COVID-19 virus and the response to it by those who run the prisons has increased the burden felt by prisoners. Prison has been a more stressful environment for prisoners, and that is so whether they are held under sentence or whether they are on remand. Social distancing has not been easy in the course of the pandemic. No doubt there has been worry about catching the virus in such a setting as that where a prisoner has no level of autonomy or freedom of movement. More significantly I think, there have been no visits and also limited courses for a very large portion of the global pandemic. You have been in custody throughout that period of course, so obviously it has been a much harder experience for you than would have been felt prior to the pandemic and I take that into account in mitigation of sentence.
Delay
41I have set out the Court chronology and I will not restate it and I am dealing now with the aspect of delay. Not a specific submission made as to way in which delay is ordinarily taken into account, but more the product of it, being the dead time that I have referred to. This matter has been over your head for a long time. I say matter but I mean matters. You chose to contest the matter that I am dealing with, as was your right, but it took its place really behind the other far more serious allegations. You decided late in the day to plead guilty to this matter but then that plea and this sentencing exercise took a back seat to the retrial matters. Again, that was perfectly understandable. There was no utility in a judge passing sentence in this matter until the fate of the other charges had been determined and that only was determined yesterday. It cannot have been easy to have the matters over your head.
42
One other consequence of the delay though is that large amount of dead or Renzella time, which has been accumulated. I say dead time as it is not directly referable to this matter. It is not strict s18 Sentencing Act pre-sentence detention but is still plainly relevant to my task. Undeclared pre-sentence detention periods in custody, are sometimes referred to in that way as 'dead time' or Renzella time. The Court of Appeal has said of that phrase that it is a period of time that, with the benefit of hindsight, should not have been served. It is particularly relevant to time spent on remand for charges that are discontinued or withdrawn or for which the person was ultimately tried and later acquitted. So in a setting where there can be no actual formal s18 Sentencing Act declaration of
pre-sentence detention. That is obviously the position here and we do not have, as sometimes exists, a large gap between that dead time and the sentencing exercise.
43Courts may take pre-sentence detention 'dead time' into account by reducing the base sentence or moderating orders for cumulation to reduce the head sentence. Taking 'dead time' into account it is not some mathematical exercise and the court does not need to reduce the sentence by the precise amount of, 'dead time' obviously enough. Indeed, the court should reduce the sentence by the amount that it considers appropriate in the circumstances. I will do that here but it brings about in my judgment a substantial reduction in the actual sentence that I actually impose.
Deportation
44I turn then to the risk of deportation. I am told that your visa has been cancelled, There is no issue about that. So undoubtedly then, there is that risk of deportation here. You will have the opportunity to ask for reconsideration of that decision and you will no doubt, and dependent upon who makes that decision, should it go against you, there might even then be the ability to take it further before either a court or some form of tribunal. It is difficult for me to make any prediction as to how those matters would ultimately play out. Well that is rather the point that your counsel is making. There is and has been a state of real uncertainly in your mind and it is not easy given the time that you have been a resident of Australia and your lack of any real connection to Northern Ireland. There is just no question that you would have been feeling and would continue to feel great anxiety about this risk of deportation that is spoken of in some of the reports and of course in your counsel's written submissions. You are looking down the barrel at the very real prospect of losing the opportunity of settling permanently in this country. Well this country has been your home since you were a child. It is all you have known since you were a child, so these are by no means minor matters. Sometimes they are, but they are not minor here. I take these matters into account in mitigation consistent with the two limbs of the Guden[4] line of authority, to which your counsel refers me.
[4]Guden v The Queen [2010] VSCA 196; 28 VR 288
Principles
45I turn then to some matters of general principle which I must have regard to in passing sentence upon you.
46There have been many decisions in our Court of Appeal dealing with the seriousness of this sort of crime and the relevant sentencing principles that come into play.
47Courts, not just in this State, but also in New South Wales and Western Australia when dealing with related provisions, have spoken of the 'need' for an immediate prison term, other than in cases where ‘exceptional circumstances’ are found to exist. Those sorts of general statements have got to be treated with real caution. There is no general exceptional circumstances test set out within the Sentencing Act which covers this exercise. So statements made in cases such as Garside[5] as to what is ‘ordinarily’ to be expected, cannot and should not be treated as some form of fetter to my discretion in the given case. They are not.
[5]DPP (Cth) v Garside [2016] VSCA 74 (“Garside”)
48That case of Garside to which your counsel referred is a useful one though and it provides guidance to the way in which these sorts of crimes are to be assessed.
49That case in fact drew together much of the case law and principles to be distilled from the case law. There have been cases before and cases since.
50It is abundantly clear that the problem of child abuse material is a significant problem. The prevalence and the ready availability of pornographic material involving children, particularly on the internet, requires that general deterrence be the paramount sentencing consideration. Denunciation is also important. So too community protection.
51It is clear that given the prevalence of this style of offending and the paramountcy of general deterrence, that past good conduct is to be afforded or given lesser weight than often might be the case. It is not to be ignored. It still is obviously relevant to my task.
52That decision of Garside, to which I was referred, dealt with the task of assessing the gravity of this style of offending. There are many matters to consider. They are not exhaustive by the way, the listing of them, but they include matters such as the nature and the content of the material, the age of the victims, the gravity of the sexual activity portrayed, the number of images, the number of devices on which they are housed, the number of children depicted, the duration of the possession, whether there was any commercial setting or distribution in mind or any profit motive engaged in the course of the exercise. Whether there was some connection to the actual players in the images or whether it was a passive receipt of images.
53I am dealing with a relatively small quantity of this style of material when viewed as against some of the enormous quantities that we see from time to time. There is no suggestion that I am aware of of any sort of profit or any aspect of commerciality. There are a number of separate children and they are real children and they are of varying ages, that much is plain. It is obvious that they are children. There are various categories that are spelt out including the more serious categories. There are multiple devices that house these images. Though there is reference to those Skype communications, as I made plain, I am not dealing with you for having any close connection to or role in the production of any of the images the subject of this charge that I am dealing with. I am not dealing with you for soliciting such images or even receiving them. It is serious offending, of that there is no doubt and that is conceded by Ms O'Brien.
54I have to exercise my sentencing discretion in your case.
55As I have said, general deterrence is plainly very important. Denunciation is also important. I have to give weight to the need to punish you adequately and to also adequately reflect specific deterrence and protection of the community. Rehabilitation is also one of the purposes of sentencing and I do not ignore it. I give it some weight.
56I must pay regard to current sentencing practices and I do. It is not a controlling factor. There has been reference by the prosecutor to the statistics disclosed in the Sentencing Advisory Council data. Statistics have inherent limitations. They tell me nothing about the individual features of the individual crimes or the matters in mitigation or aggravation for that matter.
57Prison is a disposition of last resort. It is inevitable here. That is conceded by your counsel. The issue is the length of the term imposed and that judgement must be influenced to a large extent in this case by the ‘dead’ or Renzella time in this case. But for that Renzella or dead time I would simply have no option but to pass a sentence of imprisonment of a dimension permitting, if not requiring the fixing of a non-parole period. Ms O'Brien concedes that that is the position. Plainly in the ordinary course of affairs, a sentence of 352 days would not be an adequate sentence. But of course I must take into account all the matters germane to this case, so I must take into account the very significant period that you have spent in custody, the period of over 700 days which I cannot declare under s18 and which cannot be declared in any other case.
Disposal order
58There is a disposal order that is sought under the provisions of s78(1) of the Confiscations Act 1997 and that is consented to. The Crown are seeking forfeiture of the various devices that house these images. There is no opposition to the making of that order and I have signed that order. I order pursuant to s78 of the Confiscations Act forfeiture to the State of the property referred to in the schedule. I direct that it be dealt with and managed in the way contemplated by the signed order that I have announced in abbreviated form.
59Yes, stand up then Mr Hill please.
Sentence
60In all the circumstances I believe it is open on this charge to accede to your counsel's submissions. I believe it is open for the reasons I have announced to convict you and sentence you to a period of 352 days imprisonment, and that is the sentence I impose upon you in relation to this matter.
Section 18
61You have served already that period of 352 days and that declaration is to be noted in the records of the Court pursuant to s18 of the Sentencing Act.
6AAA
62I have told you that I have reduced your sentence because you have pleaded guilty. If you had been convicted of this offence following a trial, I would have imprisoned you for 3 years. I would have fixed a non-parole period of 2 years. Take a seat then for a moment, if you like.
Sex Offender Registration Act 2004
63I need to deal now with the Sex Offender Registration order here. You have some familiarity with this, because it has previously been explained to you following the sentence imposed by Judge Mullaly, a sentence that no longer stands of course, but you would have understood I think your obligations under that Act. You have been sentenced by me in relation to what is described as a single Class 2 offence under the Sex Offender Registration Act. There is no issue taken with the length of your reporting obligations under that Act. Upon your release from custody, whenever that is, in the event that it is in this jurisdiction of course, it may not be, you must comply with your reporting and other obligations under that Act for the period of 8 years.
64I am doing now what was done on a previous occasion, but with a much lesser reporting period obviously, given that we are only dealing with a single charge. So I will be providing down to you a document to get you to sign it, and you are just acknowledging by signing it that you have received these explanations in the document as to your responsibilities under the Act. You have seen one of these before. I am not expecting you to sit there now and read it, it would be impossible to do that.
65The Sex Offender Registration Act imposes a number of conditions upon you. They are serious conditions. They include impediments to future employment in a number of areas. There are impediments to your future contact with children and the need to report any contact and you will need to familiarise yourself with your obligations. Any breach of that Act or your obligations under it is a serious criminal offence, usually punishable by a term of imprisonment. So you need to understand what it all means but it is a very lengthy document. You are not going to go through it as you are sitting there today.
66Ms O'Brien you have seen these documents before. They are very lengthy. I am only dealing with notification of his reporting obligations so it goes into all of that chapter and verse. He is not being asked to read it all now, that would be impossible for him to do that. He merely being asked to, by his signature, acknowledge receipt of that notice. Do you want to go down and just explain that to him?
67MS O'BRIEN: Absolutely, thank you, Your Honour.
68HIS HONOUR: Let me just deal with the notice. Look, I will hand those down to you, Ms O'Brien. Just go up, if you need to explain it, explain it but it is just a matter of him putting his signature on that.
69That has been signed, as I understand it. Let me just see if there is anything else I need to do. Any other matters then I need to deal with?
70COUNSEL: No, Your Honour.
71HIS HONOUR: No, all right, thank you. That completes the matter then so no doubt Ms O'Brien will come out and have a chat to you out the back or next door, wherever you are taken. Mr Hill can be removed, thank you.
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