Director of Public Prosecutions v Hill (a pseudonym)

[2023] VCC 56

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEAN HILL (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	20 January 2023
CASE MAY BE CITED AS:	DPP v Hill (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 56

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. D'Arcy	Office of Public Prosecutions
For the Accused	Mr J. McQuillan	Dribbin & Brown Criminal Law

HIS HONOUR: 

1Sean Hill,[1] you have pleaded guilty to one charge of sexual assault of a child under the age of 16 years.  That crime carries a maximum penalty of 10 years' imprisonment.  I note that the charges are of a rolled-up nature as the three incidents giving rise to that rolled-up chare all occurred within seconds of each other.  I am of the view that I should treat it as a single charge in reality, which indeed could have been dealt with in a Magistrates' Court as it ultimately turned out. 

[1] A pseudonym.

2You have pleaded guilty to a settled indictment.  That plea of guilty is of real value to the Crown in this situation as I will not go into the details of it, but the Crown may have had very significant problems in trying to prove any form of penetration which it originally was. 

3Accordingly, I accept that the plea has remorse associated with it.  It also has the utilitarian benefit of avoiding a trial, even though there had been a special hearing.  The circumstances are described in the decision of Worboyes are certainly of particular importance here, and I give very significant weight to that. 

4Also of importance in this situation, and in my view is very much of importance, is that the plea of guilty gives an admission and a recognition to the victim, which is never achieved after a trial.  And I think there is an important aspect to be employed there.  So, in terms of plea of guilty, those matters all play a part. 

5You do have prior convictions, most of them of some antiquity, and mainly for driving.  In these circumstances, they are of no concern to me.  The offending now happened some four years ago.  As I understand it, there has been no subsequent offending of this nature at least.

6The offending, as I will describe, is clearly serious.  In the normal course, the events calls for general and specific deterrence - I think in your case specific deterrence are unnecessary - denunciation and appropriate punishment.  Because of the offending, you will be placed on the sex offender's register.  I advise you that the reporting conditions will be for eight years. 

7Because this is being done remotely, what it will do I will arrange for that document to be forwarded to your solicitors on the understanding that they will then forward that on to you, and we will simply leave it at that. 

8I also take into account, before I go into the details of the offending, there was a delay of 12 months before the matter was reported - that is not unusual.  It was then you were then interviewed, and there was not then a delay of something like 12 months before you were even charged.  So, you did have that 12 months of anxiety of not knowing whether you would be charged or not and I take that into account as well. 

9It seems clear that since the charges have been laid, you have continued to work.  You have not dropped your bundle like some people in these situations do, and that again is very much to your credit. 

10The allegations are that you, at the time of the offending, were 55 years of age.  As I understand it, you are now 59.  You were residing at a hotel in north western Victoria.  And the complainant was staying with you, and effectively could be described as your step-granddaughter.  Clearly, you were in a position of trust and that certainly does not assist you in this situation.  She had been living with you and your wife for around about five years while you ran the hotel and lived in the residence. 

11Indeed, what was happening was that the complainant would sleep in a bunk with her sister or stepsister.  One night you said that you would go and give her a kiss goodnight.  She was lying in her bed - and this was in August 2018 - I will revise this.

12She was lying in her bed, you came in.  She heard you open the door.  You sat down on the bed beside her.  You were sitting on top of the doona cover.  You put your hand under the blankets and touched her around the hip.  She was not wearing underwear.  You then put your hands down her pyjama pants.  She apparently started kicking around, trying to get you off.  You forced her down with your hands on her shoulders.  She continued to try and push you away.  You kept telling her to trust you, as I have already referred to that. 

13You then put your hands under the blankets, lifted her top up and touched her breasts, grabbed both of her breasts.  You then kissed her belly button up to her nipples and sucked her right nipple, put your hands back down her pants, rubbed her over the vagina, rubbing the clitoris, though in this situation there is no penetration in any event.  (Indistinct words) rubbing her vagina.  You had one hand holding her down.  That went on for about four or five minutes.  She says that you pulled your hands out of her pants, licked your fingers and sniffed them, and told her you were proud of her. 

14Sometime after that, about a year later, as I have indicated, she reported the matter.  She made a VARE in October 2019, and you were interviewed about it. Charges were not laid for a significant period of time after that.  It is a situation where the offending, as I have already indicated, has to be regarded as serious.  And I have some cases that relate to it.  It is a standard sentence of four years, and I will refer to that later on. 

15It is clearly a breach of trust.  It would appear though that there are in terms of not so much mitigation, but not aggravating features, there was no real violence other than it is an act of violence in itself, I suppose.  There were no threats made, which are often made in these situations.  And it was over a relatively short duration. 

16I am prepared to view what occurred, albeit serious, as about five minutes of madness on the part of yourself.  What was going on in your life at that time, I am not too sure.  It is a bit hard to know where all this came from.  But in any event, where you have got no priors and no subsequents, I think the risk of you reoffending I this way at least is virtually zero, and I take that into account. 

17In terms of matters personal to yourself, your counsel, with respect, was very succinct and laudably succinct set of submissions.  Again, I have indicated Worboyes and all those matters. 

18Your personal history is that you are 59 years of age.  You were born in Warragul.  None of your family has ever been in trouble with the law.  You had a good childhood.  You undertook your first job at 16.  You have been continually employed throughout your life predominantly as a truck driver, and most recently as a hotelier.

19You worked for various transport companies over the years and you have clearly, all your life, been a hardworking man and provider.  You have got various certificates in alcohol and responsible service of alcohol.  And apparently you no longer own or operate the hotel where the offending occurred.  You have now, since then been working for Four Seasons Waste, having been employed there on a full-time basis for a couple of years.  You earn about $1000 a week. 

20You have been married to your current wife for 21 years.  You have two children, 31 and 32.  Your first wife passed away.  And at this period in time - I will refer to this again in a moment - you and your current wife are both suffering from very significant medical issues.  You own your own house, and you intend to continue to work for as long as you can and continue to support your wife. 

21As I indicated, the criminal history is of no real concern to me, and I am treating this as, in any event, an objective synthesis, I suppose, a few minutes of madness.  You and your wife live alone together, and it is at that point where the real sentencing discretion comes in play in terms of instinctive synthesis. 

22I have indicated full employment, prospects of rehabilitation are probably achieved - not that I take that into account in the sense of a standard sentence, but I think 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.

23The Crown submission was that it should be an active custodial sentence to be followed by a community corrections order.  The community corrections order, in my view, would be of no point here.  I can indicate very clearly that in the normal course of events, this would be an active custodial sentence.  But it has become clear from the material provided by your counsel, this is an extremely unusual and very, very sad situation. 

24There is a report from the Andrew Love Centre, which simply points out that your wife has advanced gastro-oesophageal junction cancer.  She is not in any chemotherapy, is unlikely to have any more treatment.  She is terminally ill and it is untreatable and inoperable from here on. 

25At the time of that report, it is said that she has about three months or so to live.  Nothing has changed since then, she has been very ill during the course of this week, and it is to be very, very sadly anticipated that were I to give you an active custodial sentence, she would pass away during the course of it. 

26You yourself have a very significant number of health issues.  I have no doubt that there is nothing there that could not be at least adequately treated in the custodial situations we have these days, but for a man in your position, to be in custody I think would be more difficult - clearly, obviously more difficult than for a person without all those medical conditions, and I take that into account. 

27I 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. 

28Others might see that as lenient - I am just trying to deal with the pragmatic realities of life when I pass this sentence.  The size of the (indistinct) will indicate the denunciation that the community feels, as do I, towards this type of offending.  

29I am aware that it is a standard sentence.  And I will simply say this about that.  I aware of the principles in R v Brown by Champion J and confirmed in subsequent cases.  That is the correct approach to (indistinct).  I have taken the standard sentence into account as one of the factors considering my instinctive synthesis of all the relevant factors.  And my consideration of that standard sentence as one of those factors is reflected in the sentences I impose, albeit having explained why I regard this as a somewhat -(indistinct words) somewhat unique situation - as a relatively unique situation. 

30The sentence I impose in respect to the charge is lower than the standard sentence.  Having identified and considered the relevant factors in assessing sentence, including the standard sentence, the objective seriousness of the offending, and the mattes available in mitigation, I have determined an appropriate sentence. 

31I look at then a decision which was handed down some years ago now of R v Cole, that was a situation of a stepfather with a complainant of the same – If I have not mentioned it - 12 years of age.  He was initially sentenced to be imprisoned, that was for three matters that all occurred over a period of time and there were three separate charges.  And indeed, that man had run a trial. 

32The circumstances there was touching of the bra, hand up her inner thigh, touching breasts, that type of thing.  The Court of Appeal said that a custodial sentence, albeit after a trial, was manifestly excessive and they themselves imposed a community correction order. 

33In this situation, I think a community correction order would serve no useful purpose whatsoever.  I think you would probably be unable to perform much in the way of work hours, bearing in mind that you are continuously working in any event in order to support yourself and your terminally ill wife. 

34What I am going to do in those circumstances is not go to the community correction order.  I point out I am well aware of the principles involved in Boulton, I take those into account as well.  This may have been the situation where had it occurred 20 years ago, for example, it may have been a suspended sentence or indeed even a partially suspended sentence.  But all those options are no longer available to a judge. 

35Accordingly, in all those circumstances, in this very unusual situation, I am going to impose a fine, it will be with conviction, and it is going to be a fine of very considerable proportion.  It has to be understood by anybody seeing this that to touch a person who is your care, who is obviously bound and unable to defend themselves against this sort of this is abhorrent. 

36Accordingly, in order to display that, you will be with conviction fined $10,000.  After that it becomes a matter between you and Fines Victoria or the Sheriff's Office, and arrangements can be made to pay it by instalments or whatever, the old situation of a judging a stay has disappeared and we will simply it at that. 

37All right, are there any other orders I need to make, gentleman?

38MR D'ARCY:  The sexual offender registration order for eight years, Your Honour.

39HIS HONOUR:  Yes, I have done that.  Yes, I might not have made it clear.  Because of what it is, I have already done that and signed it, and that will be sent to the solicitors.

40MR D'ARCY:  Yes, you did say that.  Yes.

41HIS HONOUR:  Yes, on the understanding that they will send it on to him.

42MR D'ARCY:  Yes.

43HIS HONOUR:  Once that has happened - I mean, I do not even have to do that, really.  It does not affect sentence, but that is it.  And anything that happens after that is a matter between him and them. 

44MR D'ARCY:  Yes.

45HIS HONOUR:  All right.  Now, you will need to - did you want to have the (indistinct) your client, Mr McQuillan, or are you all right?

46MR McQUILLAN:  No, I am all right, Your Honour. 

47HIS HONOUR:  That is all right.  All right, we will not worry about that then.        

48(At this stage the court proceeded with another matter.)

49HIS HONOUR:  Good luck, Mr Hill.  Yes, hopefully things work out all right for you

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