Director of Public Prosecutions v Hill (a pseudonym)

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0022

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
SEAN HILL (A PSEUDONYM)[1]	Respondent

[1]To avoid the possibility of identifying the alleged victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.

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JUDGES:	PRIEST, T FORREST and HARGRAVE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2023
DATE OF JUDGMENT:	19 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 84
JUDGMENT APPEALED FROM:	DPP v Hill (a pseudonym) [2023] VCC 56 (Judge Smallwood)

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CRIMINAL LAW – Crown Appeal – Sentence – Sexual assault of a child under 16 – Respondent sentenced to a $10,000 fine – Sentence imposed when respondent’s wife bedridden with terminal illness – Whether sentence manifestly inadequate – Whether exceptional family hardship – Markovic v The Queen (2010) 30 VR 589 applied – Appeal dismissed.

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Counsel
Appellant:		Ms E Ruddle KC with Mr L McAuliffe
Respondent:		Mr M Stanton and Ms S Buckley
Solicitors
Applicant:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent:	Dribbin & Brown Criminal Lawyers

PRIEST JA

T FORREST JA:

On 16 January 2023, the respondent pleaded guilty in the County Court to a ‘rolled-up’ charge of sexual assault of a child under 16.[2]
[2]Crimes Act 1958, s 49D(1). The maximum sentence is 10 years’ imprisonment, and the standard sentence is 4 years.
Following a relatively brief plea in mitigation, the judge convicted the respondent and sentenced him to pay a fine of $10,000.
Pursuant to s 287 of the Criminal Procedure Act 2009 (‘CPA’), the Director of Public Prosecutions (‘DPP’) appealed against the sentence relying on two grounds, formulated as follows:
1 The sentence imposed in respect of Charge 1 is manifestly inadequate.
2 The learned sentencing judge erred in finding that there were circumstances that amounted to exceptional, per Markovic v The Queen (2010) 30 VR 589, such that the court’s discretion of mercy should be exercised.
Particulars
(a) The learned sentencing judge erred in determining that the Crown had conceded that the exceptional circumstances test was satisfied as per Markovic v The Queen (2010) 30 VR 589 because no such concession was made.
(b) It was not open for the learned sentencing judge to find that the facts, matters or circumstances before the Court amounted to satisfy the exceptional circumstances test as per Markovic v The Queen (2010) 30 VR 589.
(c) The learned sentencing judge erred in his consideration of how the respondent’s anguish (or psychological damage) could be taken into account in considering the exceptional circumstances test as per Markovic v The Queen (2010) 30 VR 589.
For the reasons that follow, we would dismiss the appeal.
The respondent and his wife ran a hotel in a north-western Victorian town. At the time of the offending in August 2018, the complainant, ‘KM’, then aged 12 years, had lived with the respondent, aged 55, and his wife in the hotel for five years. She would work in the kitchen of the hotel on Friday nights and other nights during the week. KM’s two siblings were the respondent’s biological grandchildren.
On the night of the offending, KM had worked in the hotel kitchen. Later, when she was in the residence of the hotel preparing to go to bed, the respondent told her he would come in to give her a goodnight kiss. At about 10.30 pm, KM was in her bedroom, dozing and not fully awake. She was on the bottom bunk of a bunk bed and her sister was asleep on the top bunk.
The respondent came into the room and sat on the bed. He put his hand under the blankets and touched KM around her hip. She was not wearing underwear. The respondent put his hands down KM’s pyjama pants. She started to kick around but the respondent pushed her down with his hands on her shoulders. While she was kicking, the respondent pushed KM down and told her to trust him. The respondent then lifted KM’s top up and used both of his hands to touch her breasts. He then kissed her from the navel up to her nipples, and sucked her right nipple. The respondent then put his hands down KM’s pants and began rubbing over her vagina and clitoris, keeping KM down with one hand on her shoulders. She continued to try and kick and push him off. The respondent rubbed KM’s clitoris for four or five minutes. Afterwards, he licked his fingers and sniffed them. As he walked from the room, the respondent told KM he was proud of her.
KM complained to police a little over a year later, on 29 October 2019. She participated in a video and audio recorded statement the next day; and, on 31 October 2019, police interviewed the respondent (who denied the allegations). KM then took part in a second video and audio recorded statement on 21 September 2020. Initially, the respondent faced three charges of sexual assault of a child under 16, and a further charge of sexual penetration of a child under the age of 16. KM’s evidence was recorded at a special hearing on 9 June and 21 July 2022. A trial was listed to commence on 1 December 2022, when, in light of the difficulty of proving penetration, the prosecution accepted the respondent’s offer to plead guilty to a single rolled-up charge of sexual assault of a child under 16, embracing three instances of sexual assault during the one episode.
On 18 January 2023, the respondent pleaded guilty to the charge and his counsel conducted a plea in mitigation. KM had not provided a victim impact statement; but, as is the practice, the respondent’s counsel had filed written submissions in support of the plea, accompanied by a report from the Andrew Love Cancer Centre, dated 21 December 2022, signed by Dr Madhu Singh, Medical Oncologist, which provided the following information concerning the respondent’s wife:
I am writing to confirm that [the respondent’s wife], … unfortunately has advanced gastro-oesophageal cancer.
She is currently not on any chemotherapy treatment and is unlikely to have any more treatment. She is terminally ill and unfortunately is expected to live for around three months or so.
The judge, having read the filed material, made the following observations:
Can I indicate to you, [defence counsel], if I might say so, they’re very succinct and very helpful submissions. I have no real difficulty with in this particular situation. Obviously I won’t sentence on the spot because of standard sentencing so I’ll have to go through that. Firstly, it seems to me that it would’ve been arguable, I know it’s a rolled up charge, but it seems to me I should be, as a matter of sentencing, treating it as the one, totally the one incident which if there was going to be a custodial sentence, would involve total concurrency. …
Having been told that the respondent’s terminally ill wife had that week taken very ill and was bedridden, the judge said:
And I think to be perfectly blunt, in this situation, I do think the circumstances are exceptional within Markovic.^[[3]] I don’t ask [the prosecutor] to make any submissions on that. I think they clearly are. It seems to me that in this given situation, to incarcerate the man in this particular situation would be cruel to him and grossly cruel to his wife. …
I don’t want a situation where – and something like adjourning for sentencing, I would never do that. I mean it’s just not that sort of situation where in her situation, I don’t want her spending the next month or two months, whatever it is, in the knowledge that when she passes away, he goes in. …
That would be a dreadful situation. I just wouldn’t be prepared to do that. So it is serious offending, there’s no question about that and the presumption of harm, there’s no question about that. But in the circumstances, I’m certainly not going to incarcerate him. This is one of those matters that had it occurred a few years earlier, it would’ve almost certainly been a suspended sentence [of imprisonment] I suspect, in all the circumstances. …
But it’s a situation where I don’t see any point in a CCO [community correction order], to be brutally honest about it. …
My inclination is to fine him but fine him very significantly and that fine would have to be with conviction. …
But what I’d normally do in this situation, I'd give him a very substantial fine for this. But I’d put a significant stay on it, bearing in mind the circumstances of his partner, life partner. So that’s what I’m proposing to do. I should ask you, do you have any submissions to make further to that, [prosecutor]?
[3]Markovic v The Queen (2010) 30 VR 589 (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA) (‘Markovic’).
The prosecutor then informed the judge that he was ‘instructed to make a submission that some time in custody is required’, his instructions being in effect that a period of imprisonment combined with a CCO was open. He then added:
But I’ve heard what Your Honour says. I understand entirely where Your Honour’s coming from. It’s a case where I would concede very clearly that this is an important plea of guilty in the circumstances of what was facing the court. It’s a significant plea of guilty in that the Crown case was not without its difficulties for reasons that Your Honour would be well aware of. In that sense, I have no further submission to make.
Following the prosecutor’s submissions set out immediately above, the judge said:
No, well it’s a settled indictment and in the times of Worboyes,^[[4]] that has to be given real significance. It seems to me that even if one were to consider a combined order, to gaol this man for a period of months in this situation with a wife with a life expectancy of a couple [of months], would just be cruel in my view. I’m not prepared to do it. But because of the instructions, [prosecutor], I understand why they’re there. There’s also been a delay of a few years but it’s a serious assault on a person who’s scared and in the normal course of events, I think I probably would incarcerate him but this is a very, very unusual set of circumstances and I think there has to be an element of humanity and mercy brought into the picture.
So that’s what I’ll do. But bearing in mind the circumstances and bearing in mind the – and fair enough instructions that [the prosecutor has] got. …
[4]Worboyes v The Queen (2021) 96 MVR 344 (Priest, Kaye and T Forrest JJA).
As we have indicated, in conformity with the relevant practice the applicant’s counsel had, prior to the plea, filed a Defence Outline of Plea Submissions. Medical reports relating to the condition of the respondent’s terminally ill wife, and to the respondent’s manifold medical conditions,[5] were filed with the submissions. Counsel drew the judge’s attention to Markovic, and ultimately sought a fine — ‘albeit a significant one’ — or, alternatively, a CCO.
[5]A report from the respondent’s general practitioner stated that the respondent has cirrhotic liver disease, moderately severe renal impairment and Type 2 Diabetes mellitus, for which he is treated with: amitriptyline, for neuralgesic pain management, and to help with sleep; frusemide, a diuretic which is used to assist his renal impairment; melatonin, a sedative to help with sleep; epoeitin beta, a red blood cell production stimulator which has been prescribed for his renal impaired anaemia (administered by weekly injections); ozempic, to help maintain better diabetic control (administered by weekly injections); propranolol, a beta blocker and used for hypertension; and spironolactone, a diuretic used to assist renal function.
In his sentencing remarks, the judge noted that the respondent had been with his terminally ill wife for 21 years. The judge stated that the respondent had a criminal history ‘of no concern’, and said he was treating the respondent’s offending as ‘a few minutes of madness’. The respondent, the judge noted, had been continually employed throughout his life, and had achieved rehabilitation. Further, the judge said that ‘there is no real risk of this ever occurring again, but there has to be a very significant punishment involved to indicate just how seriously the community regards a breach of trust such as this’. There would be ‘no point’, the judge said, in imposing a CCO, since the respondent ‘would probably be unable to perform much in the way of work hours, bearing in mind that [he is] continuously working in any event in order to support [himself] and [his] terminally ill wife’. The respondent, the judge said, had ‘a very significant number of health issues’. Importantly, the judge observed:
I also take into account the fact that were I to incarcerate you with your wife in that situation, the psychological damage to you would be enormous. And as indicated during the course of the plea, in the overall circumstances here where it is conceded that Markovic is applicable, I think that to impose an active custodial sentence would be verging on an act of cruelty to both of you.
Others might see that as lenient [but] I am just trying to deal with the pragmatic realities of life when I pass this sentence. The size of the [fine] will indicate the denunciation that the community feels, as do I, towards this type of offending.
The family hardship with which the principles in Markovic are concerned is the hardship which imprisonment creates for persons other than the offender. Thus, in Borg, when discussing the application of Markovic, this Court said:[6]
[6]Borg v The Queen [2020] VSCA 191, [48] (Priest, Beach and Niall JJA).
The relevant principles were recently discussed by this Court in Cross:[7]
[7]Cross v The Queen [2019] VSCA 310, [50]–[52] (Priest and Weinberg JJA).
Prior to Markovic, there was a school of thought that, notwithstanding that exceptional family hardship had not been demonstrated, there was still room for the extension of mercy in appropriate cases. Thus, in Carmody,[8] the applicant had pleaded guilty to being knowingly concerned in the importation of heroin with her husband. Having found that the sentencing judge had erred in the way in which he dealt with the applicant’s co-operation, necessitating the applicant’s resentence, the Court took into account the effect of the applicant’s incarceration on her four year old child. He had suffered convulsions when separated from her, but subsequently had been allowed to live with her in prison. Tadgell JA (with whom Winneke P agreed) said:[9]
[8]R v Carmody (1998) 100 A Crim R 41.
[9]Ibid 45.
I cannot regard this as a case where exceptional circumstances have been shown. Nevertheless, this Court is in a position — as the learned sentencing judge necessarily was not — to learn something, with less than satisfactory material, of the actual impact that the applicant’s incarceration has had on her son. We cannot act as though exceptional circumstances have been shown, for they have not been shown. We can, however, show some mercy, tempering the wind to the shorn lamb. I think this is a case in which to do it: compare Miceli (1997) 94 A Crim R 327 [R v Miceli [1998] 4 VR 588]. A similar attitude has been taken in the English cases of Vaughan (1982) 4 Cr App R (S) 83 and Haleth (1982) 4 Cr App R (S) 178. In each of those cases an amendment of sentence was made on appeal so as to achieve the immediate release of a prisoner in order to allow a sick child or children to be cared for.
As Markovic has since made clear, however, there is no residual discretion to exercise mercy on grounds of family hardship where the relevant circumstances are not shown to be exceptional. The Court said:[10]
We have concluded that the established common law position should be reaffirmed. Our reasons may be summarised as follows:
1. Reliance on family hardship — that is, hardship which imprisonment creates for persons other than the offender — is itself an appeal for mercy.
2. Properly understood, therefore, the purpose and effect of the ‘exceptional circumstances’ test is to limit the availability of the court’s discretion to exercise mercy on that ground.
3. Accordingly, there can be no ‘residual discretion’ to exercise mercy on grounds of family hardship where the relevant circumstances are not shown to be exceptional.
4. The effect on the offender of hardship caused to family members by his/her imprisonment raises different considerations, to which the ‘exceptional circumstances’ test has no application.
The Court observed that: first, it is almost inevitable that imprisoning a person will have an adverse effect on the person’s dependants;[11] secondly, the primary function of the sentencing court is to impose a sentence commensurate with the gravity of the crime; thirdly, to treat family hardship as the basis for the exercise of leniency produces the paradoxical result that a guilty person benefits in order that innocent persons suffer less; and, fourthly, to treat an offender who has needy dependants more leniently than one equally culpable co-offender who has none would defeat the appearance of justice and be patently unjust.[12] For these reasons, it is only in the exceptional case, where the plea for mercy is seen as irresistible, that family hardship can be taken into account.[13]
[10]Markovic, 591 [5].
[11]Ibid 591 [6].
[12]Ibid 592 [7].
[13]Ibid.
Although it has been observed many times that manifest inadequacy is a conclusion ‘which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate’,[14] the appellant’s counsel nonetheless contended that the sentence imposed ‘was inadequate for a number of reasons’. In summary, eight reasons were advanced:
·    first, the respondent’s was grave offending involving the abuse of a young girl’s unqualified trust in the person with whom she lived;
·    secondly, the respondent was 43 years older than the complainant; was in control of the situation; and was entirely responsible for the offending, which involved ‘a degree of forethought or premeditation’;
·    thirdly, contrary to the findings of the sentencing judge, there was violence involved in the offending;
·    fourthly, the respondent undertook the offending for his own gratification;
·    fifthly, the offending was not, as the judge described it, a ‘few minutes of madness’;
·    sixthly, despite the judge’s finding to the contrary, there was scant evidence of rehabilitation;
·    seventhly, although the plea of guilty was ‘important’ or ‘significant’, the complainant still had to give evidence (and be cross-examined) at a special hearing; and
·    eighthly, the judge erred in finding that there was exceptional family hardship, permitting the application of mercy consistently with the principles in Markovic.
[14]See Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
Among other things, counsel for the respondent submitted that this was a most unusual case, in light of the terminal illness of the respondent’s wife. Counsel conceded that the sentence imposed in this matter is towards the lowest end of the available range given the seriousness of the offending, but was nonetheless within range. The judge exercised mercy, in circumstances where the prosecution made no submission that there was no exceptional hardship or that the principles in Markovic had not been animated. Further, although the prosecutor repeated his instructions that immediate imprisonment (with or without a CCO) was appropriate, he made no submission that a fine would be manifestly inadequate. Counsel submitted that it was clear that the exceptional circumstances hurdle had been cleared. That explains why the prosecutor told the judge that he had ‘seen the materials’ supplied by the defence, and had no ‘further submissions to make’. Moreover, contrary to the appellant’s submissions, the judge did not confuse the respondent’s anguish with the application of Markovic principles, and separately considered the impact upon the respondent and his wife. In any event, counsel submitted, the appellant has failed to advance a sound reason for not applying the ‘residual discretion’.

At the time of the plea, the applicant’s wife was bedridden and extremely ill. Dr Singh, in his letter dated 21 December 2022, said that she was ‘terminally ill and unfortunately is expected to live for around three months or so’. (As it transpired, she died two months later, on 16 February 2023.) There was no chance that she would recover. Thus, had the respondent been imprisoned, she would have lived out the last days of her life deprived of the companionship, care and comfort, of her partner of 21 years.
In our view, the circumstances adverted to above amounted to exceptional family hardship, enlivening a discretion in the sentencing judge to exercise mercy when imposing sentence. As the judge observed in the course of the plea, given the situation in which the respondent’s wife found herself, it would have been ‘grossly cruel’ to have imprisoned the respondent (and, concomitantly, ‘cruel to him'). The judge thought it to be unpalatable that the respondent’s wife might spend ‘the next month or two months, whatever it is, in the knowledge that when she passes away, he goes in’. That would be a ‘dreadful situation’. Moreover, as the judge observed in his sentencing remarks, to have imposed a custodial sentence ‘would be verging on an act of cruelty’ to the respondent’s wife and her husband. Others, the judge said, might regard the proposed sentence as ‘lenient’, but he was endeavouring to ‘deal with the pragmatic realities of life’. We agree with each of the judge’s observations.
Although, in Wirth, Wells J observed that hardship to spouse, family and friends, ‘is the tragic, but inevitable, consequence of almost every’ conviction imposed by a criminal court, he added:[15]
But it has been often remarked that the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense

of mercy or of affronted common sense imperatively demands that they should draw back. So it is proper that I should here add that, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so. In this connection, I respectfully adopt the remarks of Walters J in Tame v Fingleton.[16] For example, if it were demonstrated to the satisfaction of the court that to send a man to prison would, without much doubt, drive his wife to suicide, it would be a steely-hearted judge who did not, however illogically, at least try to meet the situation by suitably framed orders as to penalty. …
[15]R v Wirth (1976) 14 SASR 291, 296. See also R v Miceli [1998] 4 VR 588; Richard G Fox, When Justice Sheds a Tear: The Place of Mercy in Sentencing (1999) 25 Monash University Law Review 1, 18.
[16](1974) 8 SASR 507, 511.

Given the very unusual circumstances that attended this case, we are not persuaded that the sentence under review is manifestly inadequate. Mercy to the respondent’s wife, borne of the exceptional hardship she would have endured had she been deprived of the emotional support that her husband could provide in the last days of her life, permitted the imposition of a substantial fine. Undoubtedly, the sentence was lenient; but, given the exceptional family hardship that obtained, it was nonetheless within the available range (albeit at the very lowest extremity).
We would dismiss the appeal.

HARGRAVE JA:

I have read the reasons for judgment of Priest and T Forrest JJA and agree that the appeal should be dismissed. However, I only join in the result because I take the view that the Crown should not be permitted to revise and reformulate its case on appeal.[17] Reading the transcript of the plea and the Defence Outline of Plea Submissions as a whole, counsel for the Crown conceded that the respondent had established exceptional circumstances justifying reliance on family hardship as an appeal for mercy. Specifically, counsel referred to the written plea submissions which stated that the respondent relied on exceptional circumstances of family hardship and contended that a fine was appropriate. Counsel for the Crown stated to the court: ‘I’ve seen the materials that my learned friend supplied and I don’t have any further submission to make.’ From that time, the judge proceeded on the basis that exceptional circumstances of family hardship had been established.
[17]CMB v Attorney-General (NSW) (2015) 256 CLR 346, 369 [64] (Kiefel, Bell and Keane JJ), 360 [38] (French CJ and Gageler J); Director of Public Prosecutions (Vic) v Frewstal (2015) 47 VR 660, 675 [71]–[72] (Maxwell P), 685 [122] (Priest and Kaye JJA).
If the Crown had not made the concession it did, the evidence would have been insufficient to support a finding of exceptional circumstances. In R v Kane,[18] the Full Court stated that ‘mercy must be exercised upon considerations which are supported by the evidence and which make the appeal not only to sympathy but also to well-balanced

judgment.’ In Akoka v The Queen[19] and Director of Public Prosecutions v Milson,[20] this court quoted that statement with approval.[21]
[18][1974] VR 759, 766 (Gowans, Nelson and Anderson JJ).
[19][2017] VSCA 214, [74] (Warren CJ, Kyrou and Redlich JJA).
[20][2019] VSCA 55, [51] (Priest and Weinberg JJA).
[21]Ibid [51]. And see the discussion at [50]–[55] (Priest and Weinberg JJA).

Here, the only evidence was that the respondent’s wife was suffering from terminal cancer with only a few months to live. That tragic fact alone did not satisfy the requirement of demonstrating exceptional circumstances by evidence. Instead, without evidence or objection from the Crown, the respondent’s counsel asserted in the Defence Outline, without evidence, that the respondent and his wife ‘live alone together and he is her only carer’, and orally informed the judge that the respondent’s wife had become ‘very ill’ and ‘is bed ridden this week’. I note that the respondent’s wife obviously had, or would soon have, the need for other carers, as the respondent was working full time in an occupation that took him away from the home.
In the absence of the concession by the Crown, the respondent needed to establish by evidence that he was his wife’s sole carer — at least while he was not at work; what her care needs were and were likely to be; that her care needs, including for emotional support, could not be met by others such as family members; and that his wife, whose hardship was at issue, wanted the respondent’s emotional and other support — notwithstanding his guilty plea. If the Crown had contended on the plea that further evidence was required, then it would have been open to the respondent to supplement the evidence he had placed before the court with evidence as to these matters. Such evidence could easily have been provided — if necessary by hearsay evidence on information and belief.
In particular, a wife’s wish for the support of her husband in her dying days, may be readily inferred in a harmonious matrimonial relationship — as the judge, encouraged by the Crown concession of exceptional circumstances, obviously did here. But not all marriages are harmonious, especially after offending such as the respondent’s is revealed by a guilty plea after previous denials. In light of the statement in Markovic that family hardship can only be taken into account ‘in the exceptional case, where the plea for mercy is seen as irresistible’,[22] such evidence should not be left to presumption or inference, as happened in this case.
[22]Markovic 592, [7].

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[2023] VSCA 84

19 April 2023