Director of Public Prosecutions v Hills (a pseudonym)

[2015] VCC 830

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE HILLS (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	28 May 2015
DATE OF SENTENCE:	17 June 2015
CASE MAY BE CITED AS:	DPP v HILLS (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2015] VCC 830

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – plea of guilty to three charges of sexual penetration of a child under 16 and one charge of indecent act with a child under of 16

Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)

Cases Cited: R v Hunter [2006] VSCA 9; R v SBL [1991] 1 VR 706; DPP v Harrison (unreported, County Court of Victoria, 23 February 2015); DPP v EC [2013] VCC 1168; Fridey v The Queen [2014] VSCA 271

Sentence:Convicted and sentenced 7 years imprisonment with a non-parole period of 5 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Coombes (Plea) Ms Dipientrantonio (Sentence)	Solicitor for the Office of Public Prosecutions
For the Accused	Mr P. Tiwana	James Dowsley & Associates

HIS HONOUR: 

1On 28 May 2015, Mr Shane Hills,[1] aged 61, pleaded guilty to four charges in Indictment number E14033926.  The first charge was one charge of sexual penetration of a child under the age of 16, such was a representative charge.  The actual age in this instance was under ten and, as such, the sentence proscribed by Parliament, indicative of the seriousness of this offence, is maximum imprisonment of 25 years.  This is a representative charge.

[1] Shane Hills is a pseudonym

2The second charge was one of indecent act with a child under the age of 16 that also was a representative charge for which the maximum penalty imposed is one of ten years.  The third charge was sexual penetration of a child under the age of 16, however in this instance, as the child was between the ages of ten to 16, the maximum penalty proscribed is one of ten years.  The first three charges concerned Kimberley.[2] The final charge concerned the other sister, Taylor,[3] and that was also a charge of sexual penetration of a child under the age of ten. The maximum penalty proscribed under s.45(1) of the Crimes Act again is a maximum of 25 years.

[2] Kimberley is a pseudonym

[3] Taylor is a pseudonym

3The background to these offences to which Mr Hills has pleaded guilty is that he was the de facto partner of the victims' grandmother.  The mother of the victims was a single mother, and lived with her mother, that is the grandmother of the children.  The offending occurring during that time and subsequently when the mother left the home with the children, but used to visit.  The relationship between the grandmother and Mr Hills was a de facto relationship, such relationship ended when these matters were disclosed in December 2014.

4Insofar as these crimes are concerned, Mr Tiwana accepted that the summary prepared by the prosecutor, Ms Coombes, as set out in the prosecution summary in Exhibit A, represented the facts upon which I was to sentence Mr Hills.

5These offences occurred over the period when he was aged 53 to 54, he is now, as I have said, 61.  Being a bit more specific, the first offence of sexual penetration was a digital offence and, as I said, it is a representative offence relevant to Kimberley.  The period over which this took place was from January 2003 to May 2004, that is a period of five years.  The activity involved either rubbing of the vagina or fingering of the vagina and, as I said, it is representative. In his own record of interview Mr Hills stated it probably happened twice a week.  I will come to the specifics of that.

6Insofar as dealing with a representative charge, I adopt the principles relevant to same as set out by the Court of Appeal in R v Hunter [2006] VSCA 9. In particular, the comments of their Honours Charles and Vincent JJA at paragraph 2 and, as he then was, Mandie AJA, at paragraphs 31 to 32, where the reasoning of His Honour Justice Batt in the case of R v SBL [1991] 1 VR 706 at 725 to 726 was adopted as the appropriate method of sentencing. As His Honour Justice Mandie said;

“The fact that a count was agreed to be a representative specimen or sample count is an aggravating circumstance.  Not only does the fact that a count is agreed to be representative preclude it being set in mitigation of the offence was isolated, it affirmatively enables the offence to be seen in its full circumstantial context.  The offender is not by a loading of the sentence to be punished for the representative offences.  But the sentence for the representative offence may reflect the fact that it, the offence counted, occurred in a wider context.  Regard may be had to the adverse effect upon victims of the whole of the conduct which affect might not have been produced or produced to the same extent by the offences counted alone.”

7There is some comment about the esoteric nature of such proceeding and, how given experience, we are able to handle sentencing in representative offences.  But they are the principles that apply. 

8The second charge also concerns Kimberley. This is a charge under s.47(1) of the Crimes Act and involved the commission of an indecent act with or in the presence of a child under the age of 16.  The period involved in this case was 6 January 2003 through to 13 May 2004.  Again, at this time, the child was indeed under the age 16 and, in fact for that period, the age of ten.  The circumstances involved essentially the use of placing her hand over her own vagina and placing it on her vagina. 

9The third charge occurred from 1 January 2003 through to 30 April 2007, and is another charge of sexual penetration of a child under the age of 16.  In that period Kimberley was between the ages of ten to 16. The penetration involved the rubbing of the penis around the lips of the child and, indeed, penetration, as defined, by placing the penis into the lips of the child, albeit that the actions of the child stopped the penetration going any further.  As I said, because of the age difference from the first charge, it involves a maximum penalty of ten years.

10The fourth and final charge on the Indictment involving the sister, Taylor, again involves sexual penetration of a child under the age of ten. It occurred between 1 January 2005 and 30 April 2007. The penetration involved was digital penetration of the vagina and, as I said, pursuant to the provisions of s.45(1) of the Crimes Act, the maximum penalty proscribed for such an offence is one of 25 years.

11This offending in fact did not emerge until the mother was advised in approximately October 2014, after discussions between the two children.  Mr Hills himself was not confronted until 1 December 2014.  He admitted this offence to his partner and proceeded to, that day, go down to the local police station at Knox and undertake a record of interview where he fully admitted his guilt.

12At paragraph 17 there is a summary of the record of interview.  It is worth some comment.  In answer to question 24, Mr Hills said this, "I have decided to come in here and report myself for being a paedophile".  At question 25, "I have been molesting my partner's granddaughter from the age of nine till - well for three years".  At question 38, "Well it just continued every couple of nights I'd go sneaking into her room and touching her vagina".  At question 36, "Basically it started and I went into her bedroom" et cetera et cetera et cetera "I shouldn't have been doing that, I'm an adult, she's a child and I've taken her innocence away from her.  I had no right to do that and I plead guilty to all of it.  What I get is what I deserve, pure and simple". 

13The point made professionally, I think, by including that in the prosecution summary (Exhibit A) is that at the first time confronted, Mr Hills accepted and professed his guilt and, indeed, although there was some issue with the second child and whether there may well have been some confusion, he has also pleaded guilty without demur in regard to Charge 4 concerning Taylor.

14The matters clearly put at paragraph 18 were that living as the de facto of their grandmother, he was in a relationship of step-grandfather with these two children.  He was living in the house at which they lived and, in those circumstances, to commit these offences against both victims in their own homes was an admitted breach of trust. Such is accepted as an aggravating factor in these circumstances.

15The two victim impact statements were not those of the children but those of, firstly, the grandmother dated 18 May 2015, Exhibit B, and of the mother dated 25 May 2015, Exhibit C.  The horror of the grandmother in understanding and comprehending what her then de facto had done to the children seems to me, appropriately recognised in the affidavit.  The mother's statement really is to the same effect.  She seems to blame herself for the failure to protect her children.  This is a common factor that we see here, but the reality is, most people never suspect these crimes are happening, as in this case.  The reality was that there was no fault.

16As was pointed out, the sexual reporting obligations apply and the provisions proscribed by Parliament are such that those apply to Mr Hills for the balance of his life.  Mr Tiwana will, no doubt, explain those matters in regard to the matter that has been served today, that is the notice.

17Insofar as the plea was concerned, as I said, Exhibit 1 was tendered and that was the defence outline of submissions, for which I thank Mr Tiwana.  There are also some medical reports, which are not in dispute insofar as a prostate condition of the prisoner.

18The fact is that since this time, because of the impact on the family, Mr Hills has lived a somewhat isolated life.  When these matters were disclosed to his own two sons, he was disowned by them.  His friends were those friends which had been part of this de facto partnership for a period of some 15 years.  Given that that relationship has gone, obviously those friends are gone - or most of them.  He has, unfortunately, been living a somewhat solitary life in a boarding house receiving Centrelink payments. 

19The prisoner, however, comes to the Court having pleaded guilty, he does not in any way suggest that he is in a state of self-pity but, as he stated in his record of interview, he accepts his guilt and accepts that he is to be punished for such.  He acknowledges the victim impact statements of both his de facto partner and her daughter.  It was also put by Mr Tiwana that his client also understood that, given the serious nature of these crimes, gaol was inevitable.

20I was taken to the personal background, which is of some instance, not all that much given the age of offending.  He has been, generally, a hard worker of a labouring type capacity and particularly in security.  Ultimately, in the period of this offending, was involved as a tree lopper. Unfortunately, as a result of having three prior marriages, he is not a man of great means, as I said, he is on Centrelink. Probably the best thing going for him was this relationship which unfortunately, as I said, immediately that these matters were disclosed, ceased.

21The only positive thing that can be said in regard to the abuse is that Kimberley finally stopped the abuse, she told Mr Hills to leave the room and from that time, there was no further offending.  Indeed, there was no further offending from that time thereafter, whenever they visited. 

22It was put by Mr Tiwana that Mr Hills was, in fact, personally glad when these matters came out, that he had been bearing the guilt. That as I said, is demonstrated by his immediate acknowledgement of same.  He admitted that to his partner, Kimberley, said sorry and the same day, as I have remarked, went down to the police station, made the record of interview that I have already read out and, in that, made significant admissions despite the question of whether there may have been, in regard to Charge 4, some uncertainty, he has not disputed the issue of penetration in regard to both children. 

23As was put by Mr Tiwana, the pleas were made at the earliest opportunity.  I was asked to accept that, in those circumstances, remorse should be seen as genuine, utilitarian in the sense that both of these young children, who are still relatively young, the trauma of having to give evidence and the issue as to the voluntary disclosure was also put as a positive in these circumstances.  I accept that totally.

24It was put that there are no priors and that a considerable period has now elapsed, eight years was put but perhaps from the earliest offending, we're not into nearly ten years.  There has been no further offending since it stopped in 2007.  And it was put that in regard to Mr Hills, there are good rehabilitative opportunities.  Those opportunities really come about from an analysis of his own life from an acceptance by the Court, which I do accept that these crimes were situational. He was not out grooming people in the street or attacking people.  It was situational.  That does not in any way excuse it, but it was confined to its circumstances.

25I also accept in the circumstances that this is a valuable plea. It was stressed to me that in regard to sentencing, Charges 3 and 4 must be sentenced as isolated offences, it was understood that Charges 1 and 2 had to be sentenced as representative charges, as I have already explained. 

26It was put that insofar as his time in custody is concerned it will be onerous.  He has very limited friends now, and given the type of offence, he will be in a protected situation.  His current situation as to his health, I have already remarked upon.  He is still overcoming difficulties with that operation.

27I was asked, in the circumstances, to be merciful as possible given that we have before us a person of the age of 61, being sentenced on the first occasion.

28Ms Coombes, in response, stressed the need for a sentence which reflects general deterrence, given the fact that these offences are enacted as protective offences by the Parliament. Also that there was a breach of trust aggravating these crimes, and for the social impact of sentencing when you consider the impact on the family as a whole, if not the community.

29Ms Coombes submitted that the sentence should reflect denunciation of the community for this type of offending, general deterrence in regard to these offences and, of course, appropriate punishment.

30There was, as I said, no issue in regard to the need for a period of imprisonment.  I was handed a number of cases, DPP v Harrison (unreported, County Court of Victoria, 23 February 2015) (‘Harrison’), DPP v EC [2013] VCC 1168 (‘EC’), and the Court of Appeal case of Fridey v The Queen [2014] VSCA 271. All those cases are informative in the general synthesis. EC, although there were many more charges, the charges were not as serious as these in the sense of applicable maximum. 

31The matter of Harrison had charges of such seriousness and the appeal case of Fridey v The Queen [2014] VSCA 271, was somewhat complicated in the sense of there was a relationship to prior offending and there was a penalty imposed initially, which was deemed to be excessive and there was then a rebalancing effected by the Court of Appeal. But, as I say, and as the authorities say, all of these cases are instructive the general synthesis that goes into sentencing but the fundamental seriousness of a crime which has a maximum penalty as indicated in this case and the particular circumstances of each crime are the fundamental issues.

32Having taken all those matters into account, Mr Hills, I would ask you to stand while I pronounce sentence upon you.

33In regard to the first charge, which is the representative charge, you are sentenced to a period of imprisonment of five years.

34In regard to the second charge, also a representative charge, you are sentenced to a period of imprisonment of two years. 

35Such sentencing results in you, under the Sentencing Act, being now a serious sexual offender and you are required to be sentenced as such.  Protection of the community becomes the number one requirement, and the legislation allows a sentence which is not necessarily reflective of the culpability of the crime.  However, there is no submission by the prosecution here that the sentence should be disproportionate, in any way.  The only other impact of the sentencing of you as serious sexual offender is that the subsequent sentences imposed are proscribed by Parliament to be cumulative. However that is always subject to the issue of totality, without in any way wishing to interfere with or disregard the will of Parliament.

36Having taking all those matters into account, I have determined the appropriate sentence for you in regard to Charge 3 is a period of imprisonment of two years and in regard Charge 4, a period of imprisonment of four years.

37Using the sentence in Charge 1 as the base, that is the five years, I order that to be served cumulatively upon that sentence and upon each other, should be six months of the sentence imposed in regard to Charge 2, six months of the sentence imposed in regard to Charge 3 and one year of the sentence imposed in regard to Charge 4.  That makes a total effective sentence of seven years.

38Pursuant to s.11 of the Sentencing Act, I order that the period that you should serve by way of a minimum period before being eligible for parole is a period of five years.

39Such does not reflect the provisions of s.6E of the Sentencing Act in that it does not effect total cumulation, which was the wish of Parliament.  I point out that the fundamental sentencing principal of totality is such that, in my view, a total effective period of seven years plus five years minimum was appropriate, on the basis of totality. 

40Pursuant to s.18, I declare that the 21 days that you have served in gaol to date be deemed service of this sentence and a declaration to that effect be recorded in this Court. 

41Pursuant to the provisions of s.6E of the Sentencing Act, it is to be recorded in this Court that in regard to Charges 3 and 4, you have been sentenced as a serious sexual offender. 

42I declare, to the extent that I am able, to comply with the requirements of s.6AAA of the Sentencing Act and the requirements of Parliament, insofar as giving you, Mr Hills, an indication of what sentence would have been passed upon you had you not pleaded guilty, I indicate that a maximum sentence of nine years and a minimum period of seven years would have otherwise been passed upon you, had you not pleaded guilty.

43You have been give the sexual reporting notice and you have signed that.  I have also signed a forensic sample requirement which does impose an obligation upon you to provide a sample by way of mouth of your forensic material when called upon.

44Does counsel require me to clarify any matter?

45MS DIPIETRANTONIO:  Not from the prosecution's perspective, excuse me, Your Honour. 

46MR TIWANA:  Your Honour, just for the sentencing transcript, in relation to Charge 3, Your Honour indicated that the age of the victim at the time was between ten and 16, in fact it was between six and ten.  I wanted to correct that, Your Honour. 

47MR TIWANA:  The maximum is the same, Your Honour, it's ten years. 

48HIS HONOUR:  But that's sexual penetration of a child under 16.

49MR TIWANA:  The argument the prosecution put forward, the fact that they couldn't say the victim may have been ten at the time the offence occurred, the maximum is ten years because the legislation‑ ‑ ‑ 

50HIS HONOUR:  So the legislation puts it into the ten to 16 category.

51MR TIWANA:  Well, at the time ‑ ‑ ‑ 

52HIS HONOUR:  So if you accept in fact - I see, six to ten, she was aged between six and ten but it couldn't be established that she was not less than ten.

53MR TIWANA:  Exactly.

54HIS HONOUR:  Which booked it into the six to ten category.

55MR TIWANA:  That's correct, Your Honour, that was the point, Your Honour.  Although ‑ ‑ ‑ 

56HIS HONOUR:  That's the difference in the sentence.

57MR TIWANA:  Correct.  Subsequently, the legislation was changed, the age was 12 or under.

58HIS HONOUR:  Very well, I'll clarify that.  Put it into that for sentencing that she was aged somewhere between six and ten.

59MR TIWANA:  Yes.

60HIS HONOUR:  Yes, I've got that, it was just a mispronunciation, I'm sorry about that.  Thank you for pointing that out.

61MR TIWANA:  Thank you, Your Honour. 

62HIS HONOUR:  No reasons why Mr Hills shouldn't be taken away?

63MR TIWANA:  No, Your Honour, I'll go and see him downstairs.

64HIS HONOUR:  Good.  Mr Hills, I wish you all the best when you get out.  Thank you very much.

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