Director of Public Prosecutions v Hill

[2016] VCC 832

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-00307

DIRECTOR OF PUBLIC PROSECUTIONS

v

DOUGLAS HILL

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	22 April 2016
DATE OF SENTENCE:	22 April 2016
CASE MAY BE CITED AS:	DPP v Hill
MEDIUM NEUTRAL CITATION:	[2016] VCC 832

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Bourke	Office of Public Prosecutions
For the Accused	Mr S. Payne	Victoria Legal Aid

Pages 1 - 6

 

 

1HIS HONOUR: 

2Mr Hill, you can remain seated. 

3Earlier today you made an application that I indicate whether I would impose imprisonment on you if you pleaded guilty to an indictment that related to the sexual offending against two teenagers, Ms CT and Ms FC in 1998 and 1999.  I granted that application saying that I would not impose immediate imprisonment.  You were just a moment ago arraigned on a plea indictment setting out two charges, one relating to each of the victims, both charges being sexual penetration of a child under the age of 16.  You dually pleaded guilty.  Much of what was said on the sentencing indication application and in particular my ruling are relevant to the reasons for the sentence I am about to announce.  Accordingly, the ruling in respect of the sentence indication will be appended to these reasons for sentence.  The reasons for sentence and the reasons for the sentence indication ruling will be anonymised so that victims’ names cannot be known and they will be provided to the parties for them to read, including you and the victims should they choose to. 

4I should emphasise, notwithstanding the sentence indication that I gave, that your offending was serious.  It involved sexual exploitation of two young women.  You were very much older than both of them.  They were immature teenagers and you were a mature working man in your 40s. 

5Ordinarily for offences of this kind gaol would be inevitable.  However, by reason of your poor health and prognosis, mercy must come into it.  Gaol for you with your debilitating cancer would be particularly onerous, indeed very harsh.  Your medical condition is serious and intensive specialist treatment is essential.  That said, the disease and the treatment leaves you extremely fatigued each day. 

6Your plea of guilty has relieved the victims of again enduring a trial.  That is a matter weighing heavily in your favour, especially as now a trial would be extremely difficult to run with very short hearing days and long breaks between as a consequence of your health.

7In your condition you are now no danger to anyone in the community.  Deterrence to you is no longer necessary notwithstanding your very old but relevant prior conviction. 

8As has been clearly stated by the Court of Appeal at the relevant times, a suspended sentence of imprisonment is a sentence that has the effect of deterring others and carries with it denunciation.  Don’t doubt for a moment, Mr Hill, that your crime should be denounced.  It was appalling conduct throughout a period of time when you were an adult and the two victims were just 14‑year‑old teenagers.  Your moral culpability was high.  You encouraged them to leave school to come to your house for your perverse sexual pleasures.  I consider in all the circumstances, however, that it is desirable to wholly suspend the sentence of imprisonment that I intend to impose.  I have explained that in all the circumstances mercy is required and the sentence of imprisonment will be wholly suspended. 

9Mr Hill, you can remain seated. 

10In respect of Charge 1 relating to CT, you are to be imprisoned for a period of 20 months or a term of imprisonment of 20 months is imposed.  In respect to Charge 2, the sentence of imprisonment of ten months is to be imposed.  I order that six months of the sentence on Charge 2 be cumulative upon the sentence that I have imposed on Charge 1.  This gives a total effective sentence of 26 months’ imprisonment.  And I suspend that sentence wholly for a period of three years.  That means that should you commit another offence punishable by imprisonment within the next three years from today, that unless you can provide evidence of exceptional circumstances that have arisen since the imposition of this sentence, so that would not include your current health conditions, then if you commit another offence, that would breach this sentence that I have imposed and in all likelihood I would be required to impose the full amount of the sentence that I have announced to 26 months.  Do you understand that carefully? 

11ACCUSED:  Yes.

12HIS HONOUR:  Almost every offence you can think of is punishable by imprisonment.  So continue to live the rest of your life without committing any crimes. 

13I am required by the legislation to indicate to you and to the community what would have occurred had you not pleaded guilty to these offences and been found guilty of them.  I take that I would have to do that as the position is now, that is given your personal circumstances as they are now a sentence would still be moderated, but it would have involved imprisonment but not merely as merciful as has occurred here.  I would have imposed a sentence of three years and nine months with a non‑parole period of 18 months.  That certainly is not to be taken as a sentence that would be adequate for someone in good health. 

14The requirements of the sex offenders registration are that you having committed the offence that you committed you must be on the sex offenders register and you must remain on it for life.  There is a document that you will be provided which sets out the consequences to you if you don’t register and don’t comply with all the very onerous conditions.  At the heart of that is, Mr Hill, that if you don’t do everything that is required by the sex offenders legislation there are serious consequences that will await.  Mr Payne will explain to you it relates to all sorts of cars you own, if you do, houses, people, internet addresses and so on.  I have not covered everything.  Mr Payne will do that.  Read the document carefully. 

15It seems to me that the legislation requires that in court I must give you a document that sets those things out.  I must sign a document to say that I have given it to you and you must sign a document to say that you have got it so we will go through that. 

16Is there anything further required? 

17MR BOURKE:  464ZF.

18HIS HONOUR:  You did ask for that. 

19MR PAYNE:  It’s not opposed, Your Honour. 

20HIS HONOUR:  I apologise.  Is there any opposition to that? 

21MR PAYNE:  No, Your Honour. 

22HIS HONOUR:  Mr Hill, an application has been made that you provide a forensic sample.  Given your prior history and the seriousness of these offences I accede to that application.  That means that you have to go to a police station and provide them with a forensic sample.  A scraping of your mouth is most likely.  The police that are involved in that are authorised to use reasonable force if you don’t cooperate with the taking of the sample.  Just cooperate. 

23Is there anything further? 

24MR BOURKE:  No, Your Honour.

25MR PAYNE:  No, Your Honour.

26HIS HONOUR:  Thank you.  Have you got the 461 order.  That will have to be emailed.  Well it’s not here at the moment, the 464 matter, but the key point about that is that there’s a window that opens that you must go to the police station, so 28 days have to pass.  That sounds the appropriate appeal time if anyone wishes to appeal.  Once that 28 days is expired since today, then you must within another 28 days or four weeks go to the police station near you and have the sample taken.  Do you understand that? 

27ACCUSED:  Yes.

28HIS HONOUR:  The document is not here.  It will be provided to your solicitors and they to you. 

29MR BOURKE:  It’s Hamilton police station, Your Honour.

30HIS HONOUR:  It will be Hamilton.  That’s where you have to go.  There’s the sex offenders registration document we’ll move to now. 

31Ms FC, there’s just a number of procedural matters that I must go through.  There is nothing further of any substance.  I just wonder whether, there will be just complete silences and background noise so far as you’re concerned and I think we’ll conclude the telephone call and, as I say, the documents, that is the full reasons, the transcript of what I have said will be available to the parties within a reasonably short period of time.  So I’ll hand the phone back to whoever gave it to me and they will end the phone call.  Thank you. 

32MS FC:  Thank you. 

33HIS HONOUR:  Here’s some documents and you sign something here, so Mr Payne can just go to the back of the court and have Mr Hill sign that document.  I note that you’ve signed this document which is an acknowledgement pursuant to the sex offender registration regulations and we’re required to send that document to the Chief Commissioner of Police and that will be done.  I think my associate signs something with it. 

34All right, is there anything further? 

35MR BOURKE:  No, Your Honour.

36HIS HONOUR:  Mr Hill, that brings the matter to an end.  You’re free to go.  Thank you Mr Payne for your assistance in the matter and you Mr Bourke but I think Ms Harold played a significant role in all of this as well and I’m grateful to her. 

37MR BOURKE:  I’ll pass it on, Your Honour.

38HIS HONOUR:  Thank you. 

(See Revised Ruling attached.)

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-00307

DIRECTOR OF PUBLIC PROSECUTIONS

v

DOUGLAS HILL

---

JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	22 April 2016
DATE OF RULING:	22 April 2016
CASE MAY BE CITED AS:	DPP v Hill
MEDIUM NEUTRAL CITATION:

REASONS FOR RULING
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Bourke	Office of Public Prosecutions
For the Accused	Mr S. Payne	Victoria Legal Aid

Pages 1 - 5

 

 

HIS HONOUR: 

1Douglas Hill, this is an application made on your behalf for a sentence indication.  The precise terms of s.207/8 of the Criminal Procedure Act are that with the consent of the prosecution, the accused can seek from me an indication that if the accused pleads guilty would I be likely to not impose immediate incarceration.  The prosecution consents to this sentence indication hearing.  I note though that the prosecution's ultimate submission is that a period of immediate incarceration is the just and appropriate sentence.

2You, Mr Hill, face a trial indictment setting out three charges of sexual penetration of a child under the age of 16, three charges of an indecent act with a child under the age of 16 and one charge of rape.  There are two complainants, Ms CT and Ms FC.  All charges it seems except one involve CT.

3When you were 41 years old, Mr Hill, you met both complainants, they were both 14.  The prosecution case in very brief terms is that you commenced to have a sexual relationship with Ms CT around 1998.  You knew she was aged under 16.  You engaged in what became regular sexual activity.  She would often wag school to meet you for sex.  In addition you engaged in a sexual penetration of Ms FC and oral penetration occurred twice on the one day, when both her and Ms CT were present, having wagged school.

4After Ms CT turned 16, she left her family home and lived with you.  You remained together until 2006, for which time you had had three children.  Although there were reports to the Department of Human Services and the police when she was under 16 raising concerns about you having sex with her, Ms CT when asked denied any sexual relationship.

5In 2009, she along with Ms FC went to the police and reported that you had commenced to have sex with her and also with Ms FC when they were under 16.  You were interviewed by the police in July of 2010.  You denied that there was any sex between you and Ms CT and Ms FC before Ms CT was 16.

6Following committal, the trial was listed in Warrnambool.  In September 2013 a trial was commenced but due to things being said by the complainant in evidence the jury was discharged.  The trial has been listed but not reached on a number of occasions.  Since then, it is now a very old case.

7As was conceded by counsel for you, ordinarily a sentence of imprisonment would be imposed for offences of this kind.  The age difference between you and the complainants is particularly concerning.  These offences are designed to protect vulnerable, naïve children, quite often to protect them from themselves.  However, much has changed in recent times it enables me to seriously consider a sentence not involving an immediate incarceration.

8The principle if not sole factor is that you, Mr Hill, are currently in a parlour state of ill-health.  Late in 2013, you were diagnosed with lymphoma, a form of cancer of the blood.  Your specialist oncologist Professor David Ashley wrote in January 2016 that you continued to have treatment for your defused B cell type lymphoma. 

9As to your prognosis, Professor Ashley wrote "It is my opinion that Mr Hill's is 50 to 70 per cent of a five year event free survival."  On 12 March 2016 Professor Ashley wrote that "You have evidence of long-standing blood vessel disease in your brain following MRI scans."  Your treatment was initially chemotherapy and you did reasonably well, but you need ongoing maintenance chemotherapy and in recent times, chemotherapy with a drug, MabThera.  The disease and its treatment results you in being in poor health, with lengthy periods of fatigue every day.  You now have to sleep for long periods each day. 

10As noted earlier, the relationship with Ms CT produced three children, two girls and a boy.  You have looked after your 12 year old son fulltime for some time.  Contact with the young girls is sporadic despite family court orders which mandate more conduct.  This unfortunate set of circumstances does not seem to be solely of your making.

11You had a serious work injury 28 years ago ending your working life.  You have been on painkillers for 28 years and anti-depressants for over ten years. 

12You have a prior criminal history, but only one matter is of particular relevance, but that needs to be kept in perspective.  In 1975 when you were 20, you were given a three year good behaviour bond for carnal knowledge of a child under - of a girl between the ages of ten and 16.  The importance of this is, as emphasised by the prosecutor this morning, was that you were exposed to the consequences of criminal proceedings for having sex with a girl under the age of consent.  You, more than anyone else, knew that consequences flowed from the criminal conduct that you engaged in with Ms CT through 98 and 99 and Ms FC.  But you have had no court matters for over 20 years.  You are now 60 years old.

13As mentioned ordinarily, a gaol term would be imposed for these crimes.  However, at the time of the offences, a court could consider suspending any gaol term wholly or in part.  While the sentencing option of a suspended sentence has been abolished, it still is available for crimes such as these committed when they were. 

14In general terms I must consider the general principles that were set out in the guideline judgment of Boulton which related to community corrections orders, a sentencing option which has said to have replaced suspended sentences.  What was made clear in that case is that the sentencing landscape in this state has dramatically changed.  Sentencing judges have to recalibrate.  Sentences not involving an immediate incarceration can now be considered appropriate for crimes that may well have attracted midrange terms of imprisonment.  The Court of Appeal listed some offences and in doing so most notably for this application included some sexual offences.

15However, here in addition to the central matter of your health are other mitigatory matters, such as the delay in reporting the crime and the delay to this point.  In my view, the sentencing purposes of denunciation and deterrence which are paramount can be satisfied by a sentence not involving immediate incarceration.  Moderation of the weight to be given to those matters flows from your poor health.  It would be an extremely harsh and onerous punishment to send a sick man such as you to prison now.  A good deal of mercy is appropriate in this case.

16I consider your capacity to engage in a community corrections order is virtually nil.  I also consider that appropriate denunciation of these crimes is achieved by the imposing of a sentence of imprisonment, but one that is wholly suspended.

17If you plead guilty to the plea indictment that will be filed, what I will do is impose a sentence that is wholly suspended if you plead guilty.  That is, I grant the application and indicate to you that should you plead guilty to an indictment that is filed I will not impose imprisonment that commences immediately.

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