Director of Public Prosecutions v Hill

[2020] VCC 1193

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

AT GEELONG
CRIMINAL JURISDICTION

CR 18-02065

DIRECTOR OF PUBLIC PROSECUTIONS

v

BEN HILL

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	6 August 2020
DATE OF SENTENCE:	6 August 2020
CASE MAY BE CITED AS:	DPP v Hill
MEDIUM NEUTRAL CITATION:	[2020] VCC 1193

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. McKenry	Office of Public Prosecutions
For the Accused	Mr A. Marshall	James Dowsley & Associates

HIS HONOUR: 

1Ben Hill, on 11 November 2019 a jury found you guilty, two charges of sexual penetration of a child under the age of 16 and further the jury found that the child was under the age of 12.  Also, the jury found you guilty of one charge of an indecent act with a child under the age of 16.  I am satisfied to the criminal standard that the facts the jury accepted were in broad terms the following. 

2You met the victim's mother online in about April 2017.  You met her face to face later in April and the two of you commenced a sexual relationship.

3On 6 May 2017, you again met the victim's mother having travelled from where you lived in Melbourne to the Geelong area.  On this occasion you met the victim and her younger brother.  The victim was then nine years old.  The next visit was on 12 May 2017.  On this occasion you stayed the night at the victim's mother's house with the children.  Around 10 pm, the victim went to bed in her own room.  You slept with the victim's mother in the main bedroom.  In the early hours of 13 May 2017, you got out of bed and went to the victim's room and got into her bed.  You pulled her pyjama pants down and penetrated her anus with your penis.  You touched the outside of her vagina with your fingers.  You told the victim not to tell anyone and it was, 'our little secret'. 

4After you had finished, the victim got out of her bed and went to the laundry where she began to cry.  Her mother came to her and put her back into her bed.  Later on, that is still in the early hours of 13 May 2017, you again went to the victim's bedroom and got into her bed and again anally penetrated her.

5The relationship between you and the victim's mother waned and at around September or thereabouts the relationship ended.  In early December 2017 the victim told first her father, then both parents together were told what you had done to her by her.  The victim's mother contacted you regarding the allegations which you denied.  The victim went with her parents to the police on 13 December 2017 and set out the allegations in a video-audio recorded evidence that was played to the jury.

6On 17 January 2018, you were arrested and interview.  You vehemently denied the allegations. 

7As part of the explanation of the long time between your arrest and the jury verdict it is to be noted, that you stood trial before another jury and judge in April 2019, however, that jury could not reach a verdict. 

8The crimes that you have been found guilty of are self-evidently very serious.  Unfortunately, the County Court regularly has to sentence offenders for sexual offending against young children.  It is important not to become immune to these horrid crimes and the dreadful impact of them upon victims and their families.

9In this regard I have recently quoted, and I do again, the final report of the Royal Commission into Institutional Responses to Child Abuse, which commenced with the following compelling words that are relevant to all child abuse offences:

'The sexual abuse of a child is a terrible crime.  It is the greatest of personal violations.  It is perpetrated against the most vulnerable in our community.  It is a fundamental breach of the trust that children are entitled to place in adults.  It is one of the most traumatic and potentially damaging experiences and can have lifelong adverse consequences.  The courts have for decades firmly declared sexual crimes against young children as grave and serious criminality.  I refer to just one such case being the recent re-statement by the Court of Appeal in which sexual abuse of children was described as "inherently evil and depraved.  It violates the most basic norms of civilised behaviour and strikes at the heart of the value which our society places on the lives and well-being of each of its young persons"[1].

[1]

10In fixing a just sentence upon you, Mr Hill I must pursuant to the Sentencing Act have regard to the nature and gravity of your crimes, your moral culpability for them and any aggravating or mitigating factors concerning you or other relevant circumstances.  What makes your offending a serious example of the crime of sexual penetration of a child who is found to be under 12 years old are the following matters. 

11First and foremost is the very young age of the victim.  She was just nine years old.  She was a vulnerable child and you simply used and violated her for your own perverse sexual gratification.

12Also, the young victim was entitled to feel safe and secure in her own home and in her bed at night.  You comprehensively shattered that sense of what is an integral part of ordinary family domestic life and childhood.  In that sense, as an invited guest and a new boyfriend of her mother, you were in a trusted position and you gravely abused that trust. 

13The fact that you repeated your abuse of the victim shortly after she was found crying in the laundry as a consequence of your first anal penetration also adds a dreadful and concerning dimension to your offending.  In that sense within the one and first opportunity of you staying when the victim was there, there was a persistence in your abuse, albeit there are only three charges within the early hours of 13 May.

14Your anal penetration caused some physical pain as described by the victim. 

15As was made clear at the outset, the impact on victims and their families of sexual abuse is often deep and enduring.  The victim's mother wrote a victim impact statement and in that she set out that before your offending, the young victim and the whole of the family were happy.  She described the victim as a child who enjoyed and was doing well at school, socially with friends and doing many family activities and indeed taking on more domestic responsibilities.  She was a curious loving and caring child, especially to her younger brother.

16After your offending, her mother describes notable changes. 

She is withdrawn and isolates herself in her bedroom.  She is very angry and violent towards her brother and gives examples, concerning examples of that.  She says that she is often in a heightened state of anxiety and it affects how we function as a family and greatly compromises her, that is the mother's mental health.  She says that the victim experiences nightmares, nightmares about you.  She is seeing a psychologist to assist her in recovering from the incident and to teach her to manage her feelings. 

She has trouble trusting and being around men or boys that she did not have before and that has made it difficult for the victim's mother in respect of having partners.  She is now attending an all-girls school as a result of being scared of boys and her mother is concerned for her future on a psychological level as to whether she will be able to live a normal life as possible, being able to trust males and have a relationship and eventually have her own family one day.  These are all deep concerns.

She says that there are triggers that make the victim feel scared and she starts thinking about the incident.  They have had to relocate from where they were living to assist the victim to recover. 

She is not progressing at school as she was and she having difficulty and being placed in lower levels within the school.  She has difficulty concentrating and understanding some her work. 

These are awful consequences for the still young victim and there is, as experience shows, likely many more years of psychological and emotional difficulties.  The effect on the mother and the family can be felt through her measured but heartfelt victim impact statement.

17I am required by the Sentencing Act to take into account the impact of your crimes on the victim.  This sort of offending is a mother's, a woman's greatest fear that in seeking out a new romantic relationship it risks and causes harm to her own child, as a predator like you exploits the circumstances of coming into the mother's life. 

18As is clear your offending is a very serious example of this crime.  It shocks and bewilders right-minded members of the public who in despair wonder what has become of proper, decent values.

19The court's denunciation and punishment of you is a re-assertion of those values.  The punishment must make clear that our society does in fact put a premium on protecting our most vulnerable, that is small children, from men like you. 

20What is also clear is your high level of moral culpability.  You knew what you were doing was so dreadfully wrong and harmful, but you put your perverse gratifications ahead of all else including a small child.  You told her to keep it a secret because you knew it was wrong and yet you repeated your penetration of her anus within hours of the first violation of her.

21There is nothing in your mental makeup that diminishes your moral culpability.

22As to your personal circumstances you are now 33.  You were born in Northern Ireland.  You migrated to Australia at the age of 11.  Your parents had separated earlier, and your mother's new partner was an Australian citizen.  You had witnessed violence perpetrated by your father on your mother and excessive drinking before the separation.  These have left a mark upon you. 

23After five years or so in Australia your mother and her new partner separated.

24You yourself did not easily settle after migrating and your schooling was disrupted.  You did not attend school and were often suspended.  You were ultimately expelled in year 10. 

25You commenced a hospitality course at the local TAFE but for a number of reasons did not complete it.  You moved into labouring jobs in warehouses and courier driving. 

26In your own account to the psychologist Ms Fleming, who was engaged by your lawyers for the purposes of the plea, you spoke of your work history in the following terms.

“Mr Hill stated that he would rarely stay and work more than a year or two as he would get to the point where I hated life and would do something, such as breach workplace rules to be fired.  Mr Hill stated that he often disliked jobs because he felt unappreciated for the work he contributed.  Mr Hill reported his last employment was seven to eight years ago when around the age of 26 and while driving forklifts it, 'wrecked by back and I could not continue' as you were not physically fit” 

You have spent a number of years following up on pain management but had not returned to work prior to your entry into custody. I do note that difficulties with your back continued and there have been further problems in prison as a consequence. 

27As I understand it, you had a long-term relationship for about eight years.  You were having time apart from that relationship when you dated the victim's mother but you resumed the relationship up until you were charged.  You established another relationship and there remains support to you. 

28You told the psychologist you had used cannabis from an early age and tried an array of other drugs including methylamphetamines and cocaine.

29You have a small number of prior convictions which are of no particular relevance to this sentencing proceedings as they include minor cannabis offences and driving offences.

30You did some drug rehabilitation involving attendance at a detoxification centre about a decade or more ago when you were in your early 20s. 

31Of real concern is your abuse of alcohol.  You spoke to the psychologist, Ms Fleming of drinking colossal amounts of alcohol after being charged with these offences. 

32You have been treated for pain as a consequence of your back problems and mental health problems and substance abuse by the psychiatrist, Dr Bergic at The Royal Melbourne Hospital pain clinic.  You also saw other clinicians including a psychologist.

33Dr Bergic reported by a letter dated 17 August 2017, that is subsequent to your offending, but prior to your being charged, that you had had earlier psychological treatment and that psychologist had noted your problems with pain, social isolation and drug use.

34Dr Bergic wrote in the letter of 17 August 2017 in the following terms:

'My overall impression was of a young 31-year-old male presenting with significant disability related both to his chronic pain, severe substance use on a background of chronic mood and anxiety symptoms related to his past developmental trauma.  His symptoms are consistent with likely undertreated post-traumatic stress disorder and underlying personality disorder, most likely of the borderline type.  The cluster of these symptoms appear to be closely linked and mutually exacerbating presenting a challenge to any intervention which seeks to address them separately.  Furthermore, Ben has limited social supports and only a few maladaptive coping strategies which are more likely to further exacerbate his predicament'.

35In a later letter from Dr Bergic in April 2018, that is after you were charged, he wrote again in summary the following:

'My overall impression was that Ben Hill has overall improved significantly since last review, however, he does continue to suffer from significant longstanding anxiety and depressive symptoms and more recently has begun using alcohol excessively which potentially can have negative impact on his mood and general functioning.  On the positive side, Ben has reportedly already contacted drug and alcohol services and has asked to re-engage to help him dealing with current substance use issues.  He also reported benefiting from antidepressant medication'.

36I have also read the report of your general practitioner, Dr Law who relates many aspects of what Dr Bergic wrote in his reporting letters. 

37The report of the psychologist, Ms Fleming noted that you were distressed and anxious in custody since the jury verdict.  Her testing indicated likely post-traumatic stress disorder; a matter perhaps now more solidly established by reference to
Dr Bergic's opinions.  As to her overall assessment she wrote the following:

'Underlying his acute distress and substance abuse are features of borderline personality disorder likely due to early exposure to dysfunctional environment and international relocation and an unsupportive mother. Mr Hill's personality development was interrupted and he learnt a number of negative ways to cope and interact with the world as a result.  Mr Hill meets the criteria of borderline personality disorder.  A pervasive pattern of instability of interpersonal relationships, self-image and effects and marked impulsivity beginning in early adulthood and present in a variety of contexts'.

38Although you vehemently deny any of the offending, Ms Fleming undertook risk assessments within that context.  She concluded that you were a low to moderate risk.  These are difficult predictive assessments, especially in the face of denials.  It seems that on what is proved by virtue of the jury verdict and the circumstances of the offence and the psychological assessment, some limited pre-offence and most post-offence, you do present, in my view as a real risk of likely future offending.  Solid evidence of borderline personality disorder also gives rise to an enduring, hard to shift psychological problems

39Ms Fleming's latest supplementary report after she had the benefit of
Dr Bergic's assessments and opinions remains unchanged. 

40Of note is that since you were remanded in custody you have been seen by a psychiatric nurse regularly and have benefited from that treatment.  Though you do remain anxious, distressed at your current predicament and have depression and other symptoms of trauma, it seems you are managing better then when you were initially remanded upon the jury's verdict.

41Your incarceration is harder because of your mental health and this is a matter that I have weighed in your favour.  So too have I given mitigatory weight to the fact that prison is much harder because of the COVID-19 pandemic.  Visits have ended and there are more and longer lockdowns.  Anxieties are heightened.

42Also, in your case prison is harder because of the near certainty, if not certainty, in your expectation that you will be deported upon your release. You did not become an Australian citizen before the crimes or before the jury verdict and that causes you difficulties in respect of deportation.  You have no real connections or likely surviving relatives in Northern Ireland and the prospect of being deported there is a burden to you as you have lost the prospect of remaining lifelong in Australia where you have lived since the age of 11.  I have taken into account what I can in respect of the added burden of imprisonment as a consequence of these deportation issues. 

43The pandemic has lengthened the time you have had to wait to get to this point of sentencing.  Your case has been a long time in the criminal justice system.  due to the earlier hung jury re-trial and then delays due to the suspension of circuits and trials.

44These mitigatory matters of your mental health, the pandemic and your likely deportation have all been given proper weight and not just brushed aside, or spoken of and then brushed aside, due to the gravity of your crimes.  However, as can be easily understood the weight of those matters is by far much less than the weight I must give to denunciation in the form of years of imprisonment and the weight to be given to deterrence to anyone who many consider the evil path of child sexual abuse.

45I must also give weight to protection of the community, both because of the circumstances of your offending involving such serious sexual abuse on the first night that you stayed over but also because, as a consequence of you committing three sexual offences, you become a serious sexual offender for the third crime.  The usual other effect other than being declared a serious sexual offender and the requirement that I give as the primary sentencing purpose protection of the community,   the other usual effect of being a serious sexual offender,  is that the presumption of concurrency is displaced with respect to Charge 3.

46However, by reason of all the facts of the third offence, it is in my view the most serious and your moral culpability is higher and I have spoken of that in the sense of you knowing what you had done, causing the child to go to the laundry and cry, you nonetheless repeated it, committing the third offence.  Thus, that third offence will be the base sentence.  The cumulation will be in respect of Charges 1 and 2 and will accord with the usual principles.

47On the matter of consistency of sentencing, I must have regard to current sentencing practices and I do but within the overriding principles enunciated by the High Court in Dalgliesh v The Queen[2] of applying individualised sentencing, that is sentencing you for the crime that you committed as the offender with all your circumstances as you present.  It is clear from Dalgliesh and authorities since, that terms of imprisonment are now lengthier for sexual offences or sexual crimes against young children like the ones that you were found guilty of.

[2]

48I have, as I must, had proper regard to the long maximum terms that Parliament has set for Charges 1 and 3 in particular. 

49It is hard to measure one set of circumstances with those in your case.  All cases are different.  One matter is that by reason of your plea of not guilty there is no beneficial weight given to you for remorse and the fact of a plea meaning that there was no need for witnesses to give evidence at a trial.  There must always be a discernible benefit for those who plead guilty in cases of this kind. However, I make clear and emphasise, you are not punished for exercising your fundamental right to go to trial.  You are entitled to deny this offending and to continue to deny this offending.

50However, the point to be made is simply that you do not get a benefit that others who plead guilty get and thus comparing your case with those others, is very difficult. 

51I have sentenced you mindful that you may have to do each day of the head sentence that I fix.  I have allowed for a period of parole fixing a non-parole period at the point that I consider justice requires you to remain incarcerated for the crimes you committed.

52I have not lost sight of your rehabilitation and your past would indicate that you can behave lawfully so there are in general terms reasonable prospects.  However, your rehabilitation must yield to the other sentencing purposes of denunciation, deterrence, especially to others and the primary sentencing purpose for Charge 3 of the protection of the community. 

53For these reasons I impose the following sentences of imprisonment.

54For Charge 1 you are sentenced to eight years' imprisonment.  Charge 2, you are sentenced to 18 months' imprisonment.  Charge 3, you are sentenced to nine years' imprisonment.  I order that three months of Charge 2 and three years of Charge 1 be cumulative upon Charge 3.  This gives a total effective sentence of 12 years and three months and I order that you serve a minimum non-parole period of nine years.

55You have served 269 days in custody on remand.  That figure having been reckoned, I declare that it is part of the sentence that I have just impose and I will ensure that that declaration is entered into the records of the court so the prison authorities know that your period of 269 days is part of the sentence I have just imposed.  You are declared as a serious sexual offender for Charge 3.  This declaration will be entered into the records of the court.

56By operation of the Sex Offenders Registration Act you must register on the sex offenders registry.  You must remain on the sex offenders register for life.  There are no discretions in respect to the fact of registration or the period of time.  You will be sent documents in due course in respect of your responsibilities as to registering upon your release.  That cannot be achieved as it would be in the ordinary non-COVID circumstances but I will sign a document which will set out that I have ensured that you have been sent the documents and another notice will be sent, ultimately to the Chief Commissioner of Police regarding your requirements to be registered.

57Your lawyers will explain to you what the requirements and responsibilities, which are onerous, upon your release of registering and remaining compliant with the sex offenders register so long as you remain in Australia.  If there are no other further maters, Mr McKenry?

58MR McKENRY:  No, Your Honour, those are the matters.

59HIS HONOUR:  Mr Marshall?  Mr Marshall, you are on mute.

60MR MARSHALL:  Yes, sorry.

61HIS HONOUR:  Is there anything - there is nothing further?

62MR MARSHALL:  (Indistinct words), Your Honour.

63HIS HONOUR:  Thank you.  I thank counsel for their assistance in this difficult and delayed matter.  Mr Marshall, I will leave.  So too will all others.  You and your instructor may discuss with Mr McIntosh having a period of time to speak to Mr Hill where he is on this system, rather than delaying till you get visits or telephone calls or the like.

64MR MARSHALL:  Thank you, Your Honour.

65HIS HONOUR:  Work that out now.  Thank you.

66MR McKENRY:  If Your Honour pleases.

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