Director of Public Prosecutions v Hinch (a pseudonym)

[2020] VCC 403

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised

Not Restricted

Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEVIN HINCH (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	Trial: 10 March 2020 to 17 March 2020 Plea: 17 March 2020
DATE OF SENTENCE:	8 April 2020
CASE MAY BE CITED AS:	DPP v Hinch (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 403

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords:   Found guilty at trial – One charge of sexual penetration of a child under 12 – One charge of sexual assault of a child under 16 – Standard Sentence offences – Victim aged 9 years at time of offending – Breach of trust – No criminal history – Strong prospects of rehabilitation – Circumstances of COVID-19 pandemic taken into account.

Legislation Cited:   Crimes Act 1958, Sentencing Act 1991, Sex Offenders Registration Act 2004.

Cases Cited:Cheung v The Queen (2001) 209 CLR 1; Director ofPublic Prosecutions v Dalgliesh (a Pseudonym) [2016] VSCA 148.

Sentence: Imprisonment for a period of 4 years and 6 months, with a non parole period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For DPP	Ms D Guesdon	Office of Public Prosecutions
For the Accused	Mr J Lowy	Joseph Burke Law

HIS HONOUR: 

Introduction

1Kevin Hinch[1], you have been found guilty of one charge of sexual penetration of a child under 12 contrary to s 49A(1) of the Crimes Act 1958, which carries a maximum penalty of 25 years imprisonment, Charge 1, and one charge of sexual assault of a child under 16, contrary to s 49D(1) of the Crimes Act 1958 which carries a maximum penalty of 10 years imprisonment, Charge 4.

[1] A pseudonym.

2You have no prior criminal history. 

Circumstances of the offence

3In sentencing you I am bound by the principles in the case of Cheung v The Queen[2].  As such, I must interpret the facts in a way that is consistent with the jury's verdict.  The facts may be summarised as follows:

Background

[2](2001) 209 CLR 1,

4In 2014 you formed a relationship with Trisha Dowling[3].  Ms Dowling had a child from a previous relationship - the victim in this case, Stephanie Dowling[4].  The victim was born on 14 August 2008 and was nine years of age during the time of the offending.  At the time of the offending you were 48 years of age. 

[3] A pseudonym.

[4] A pseudonym.

5In late 2016 you and Ms Dowling commenced living together.  Stephanie called you ‘Dad’ or ‘Daddy’. 

First Incident

6In March 2018, the victim's mother Ms Dowling, went to China on business and you were looking after the victim in their house in Vermont South. 

7As you and the victim were hugging you placed your hand under her clothing, under her leggings and knickers and then moved your hand down over her buttock/genital area. 

8You inserted your finger into the victim's vagina and moved it in and out for approximately half a minute.  The victim told police in the Video Audio Recorded Evidence (VARE) statement: 'I think…kind of like... going in and…in and out, in and out'.  During the special hearing the victim said that it was in the area where ‘the wee comes out’. She said the touching felt uncomfortable.

9The victim told police in the VARE that you were 'going up and down with his fingers'.  She demonstrated the action by using her fingers on her right hand to form a circle and her fingers on her left hand to symbolise your fingers going in and out of the circle.  She stated that you later said 'I love you'.  It is these facts that relate to Charge 1, sexual penetration of a child under 12.

Second incident

10The second incident occurred on Friday 21 July 2018.  You and the victim were in your living room at the Vermont South home.  The victim's mother, Ms Dowling, was in the shower. 

11You sat on a seat by your computer and the victim stood facing you and gave you a hug.  You placed your hand on her lower back underneath her clothing.  You moved your hand down over her buttock/genital area and began playing with her bottom.  The victim told police 'so like he puts his finger and…in…in yeah and plays with my bum'. 

12During the VARE the victim was asked to draw the part of her body that was touched by you.  Included in the diagram was a circle centred above the lower part of her buttocks.  She described the circle as 'where he touches'.  The victim further clarified 'when you do a wee it comes out from there'. 

13The victim was asked 'has he put his fingers inside you at all?'.  She answered 'no, I don't think so'.  She advised police that the touching went on for about one minute and described it as feeling 'uncomfortable…it hurts a tiny bit, not a lot, just a tiny bit'. 

14On Saturday 22 July 2018 the victim told her mother 'Mummy, I have an itchy bottom'.  She then scratched her front genital area.  Ms Dowling applied papaw ointment to her vagina.  The victim then added 'Mummy, Daddy actually touched my bottom'.  It is these facts that relate to Charge 4, sexual assault of a child under 16. 

15Ms Dowling immediately sought advice, attended the Forest Hill Police Station and brought the victim into Box Hill Sexual Offences and Child Abuse Investigation Team office, where the VARE statement was obtained from her.  During the interview the victim stated that you touched her in a similar way probably four or five times.  This evidence was led at the trial as context evidence.

16A forensic medical examination was conducted on the same day at the Monash Children's Hospital soon after taking of the VARE. 

17At 4.00pm on 22 July 2018 you were arrested and conveyed to the Box Hill Police Station.  You were interviewed and answered ‘No Comment’ in response to all questions and allegations. 

Nature and gravity of the offending

18Sexual offending against young people under the care of adults is very serious offending.  The victims of such offending are vulnerable and reliant on adults to guide them and care for them.  Moreover, as the Court of Appeal explained in Director of Public Prosecutions v Dalgleish (a Pseudonym)[5]:

'The absolute prohibition on sexual activity with a child is founded on a presumption of harm.  The significance of violence and harm which such conduct entails cannot be overstated'. 

[5][2016] VSCA 148 at [47], referring to Clarkson v The Queen (2011) 32 VR 361 at [3].

19The seriousness of the offending in this instance is also recognised by the maximum penalties imposed by Parliament.  In relation to Charge 1 the maximum penalty is 25 years imprisonment, while Charge 4 carries a maximum penalty of 10 years imprisonment. 

20In relation to the two incidents here, the victim was nine years of age.  She called you dad.  She clearly trusted you and treated you like a father. 

21Your offending represents a breach of trust in relation to both the victim and the mother of the victim, who trusted you with the care of her young daughter.  Children are entitled to feel safe in their own homes when clearly under the care of an adult as the victim was in relation to both charges.

22As to the first incident, the victim was in your care while her mother was overseas on business.  It was in those circumstances that you took advantage of her while you were hugging her, by penetrating her vagina with your finger. 

23Having viewed the VARE it was apparent that she had very little understanding of what you were doing.  However, as clarified in the special hearing, she was clear, using her own descriptions, that you penetrated her vagina and said that it was uncomfortable. 

24Mr Lowy, who appeared on your behalf at the trial and the plea, submitted that in relation to the penetration charge the physical act of penetration is at the low end when compared with other examples.  While objectively it may be that the physical circumstances support that submission, the fact is that the jury accepted that the victim's vagina was penetrated by your finger to some extent.  Further, the offence must be assessed in all the circumstances which includes the age of the victim and the breach of trust.  Thus, in all the circumstances, in my view, Charge 1 is still a relatively serious example of the offence. 

25The second incident occurred in a similar manner, while you were hugging the victim.  However, on this occasion the victim's mother was at home in the shower.  Your conduct involved you placing your hand down the back of her clothing and onto her genital area.  In evidence the victim was unsure of whether the touching was on the anus or the vagina.  However, she clearly identified the genital area on the body map and in her description. 

26As such, consistent with the jury's verdict, I find that the touching was sexual in nature, but I do not make a finding as to the requisite standard that it was specifically on the vagina or anus. 

27In my view, in the circumstances, this offence is not at the high end.  However, again, given the age of the victim and the breach of trust it is still serious offending. 

28In relation to both incidents I accept that the offending does not have features of aggravation such as threats or coercion, but rather, was opportunistic, gratuitous conduct. 

Victim impact statement

29A victim impact statement was prepared by Trisha Dowling, the victim's mother and tendered and read on the plea.  Ms Dowling states that she has had difficulty focusing on her work as the criminal process has unfolded.  She feels like she has been betrayed and is unable to understand why you did what you did to her daughter when the relationship she had with you was a positive one.  She feels anxious about leaving her daughter with any other man in the future and worries about how your conduct will affect her daughter and her daughter's relationships in the future.

30I have taken the contents of the victim impact statement into account.

Personal circumstances

31You are 51 years of age and come before the court with no prior criminal history.  You were born in New South Wales.  You have three brothers and one sister.  However, you have grown apart over the years and have lost contact with your siblings.  You grew up in government housing, sharing a room with your three brothers. 

32When you were aged 11 your father left the family.  Your father worked as a mechanic.  After he left the home your mother worked two jobs in order to keep the family housed, clothed and fed and thus she was not at home for any great period of time. 

33You instruct that your father was very physically violent towards you, striking you regularly with either his fists or a cord.  Your mother resides in country Victoria and suffers from Parkinson's Disease.  However, you report that your relationship with your mother is very good and you have regular contact with her. 

34After your father left the home you report that the following years were difficult.  Ultimately you turned to drugs in your adolescent years, using alcohol, cannabis and amphetamines.  At aged 15 you attended drug rehabilitation in Goulburn in New South Wales. 

35Your first serious relationship was at aged 18 and lasted for some two and a half years.  From the relationship you have a daughter who lives in New South Wales, who now has children of her own.  You maintain a good relationship with your daughter and your grandchildren. 

36In your mid-20s you were married for two years and from that marriage you have two further children, daughters now aged 25 and 24.  They too have children of their own.  In 2000 you married your second wife and you have another two children from that relationship, now aged 19 and 15.  That relationship ended in 2005. 

37You lived and worked in New South Wales until 2014 when you relocated to Victoria.  However, you have maintained good relationships with all of your children and grandchildren, despite the fact that they live in New South Wales. 

38You attended school in New South Wales, ultimately leaving school halfway through Year 10, at a time when your drug use and consequent mental health deteriorated requiring intervention.  In 1984 you worked for a company making nuts and bolts for approximately two years.  In 1987 you worked at an electronics company for approximately three years.  From 1990 to 1995 you worked at a security firm. 

39After a period of unemployment, you began working for a call centre from 1997 to 2002 before taking up work at Centrelink until January 2020, where you are working at a managerial level.  You left that work prior to the commencement of the trial. 

40You have been an indigenous mentor for the Department of Human Services and have been a member of the Indigenous Employees Network.  From 2013 to 2015 you suffered depression and were treated with anti-depressants and counselling. 

41Since being in custody for some two weeks since the trial, you have become anxious about a recurrence of your depression, given the current circumstances, and have difficulty sleeping. 

42A reference was tendered on the plea from Megan Dickie[6], a friend and work colleague.  Ms Dickie speaks highly of your integrity in the work context and on a personal level.  She describes you as trustworthy and loyal.  In the context of your work, she describes a circumstance when you were working with a customer who had suffered domestic violence and speaks of your patience and compassion. 

[6] A pseudonym.

43On a personal level, Ms Dickie states that you have assisted her and her family, including her 14 year old son.  Understandably, she finds it difficult to believe that you have committed these offences. 

44While having gone into custody during the onset of the COVID-19 pandemic, there is great uncertainty as to how you will spend your time in custody over the next year.  At this stage the prison is locked down and rather than being allowed out of your cell between 8.30am to 6.30pm, you now alternate with other prisoners spending only four hours out of your cell each day. 

45While the future regime remains uncertain, you have been told that the lockdown regime could last up to six months.  Also, as a result of the pandemic other services have been suspended which would be engaged by you in terms of your rehabilitation and education.  There are also restrictions on visits as a result of the virus.

Relevant sentencing considerations

46In cases such as this, general deterrence, just punishment and denunciation of your conduct are paramount sentencing considerations. 

47Specific deterrence, in my view, need not carry weight in the sentencing discretion.  At 51 years of age you have no prior criminal history.  Facing your first time in custody has already been a difficult experience for you and prison will undoubtedly have a great deterrent effect for a man in your circumstances.

48In my view your prospects of rehabilitation are able to be assessed as strong.  You are an intelligent man with no prior criminal history, an excellent work history and supportive family and friends.  As noted above, you have entered prison in the context of the COVID-19 pandemic and already are experiencing restrictions as a result. 

49The uncertainty of the extent of the restrictions adds additional stress and concern for you and for your family.  More specifically, your elderly mother suffers from Parkinson's Disease and you will be unable to assist her through this period as contact will be restricted.  As such, I take into account the circumstances of the COVID-19 pandemic. 

50Finally, in addition to the matters I am required to take into account under s 5(2) of the Sentencing Act 1991, I must also take into account that both charges are standard sentence offences. The standard sentence for Charge 1 is 10 years imprisonment. The standard sentence for Charge 4 is four years imprisonment. The prosecution submitted that with reference to the standard sentence the offending in relation to both charges is lower than the mid range.

51Having identified and considered the relevant factors in assessing the appropriate sentence as part of the instinctive synthesis, including the maximum penalty and the standard sentences for each charge, in this case I form the view the sentence I will impose on each charge is lower than the standard sentence.

Sentence

52Mr Hinch, can you please stand.

53Kevin Hinch, on Charge 1, sexual penetration of a child under 12, you are convicted and sentenced to four years imprisonment.

54In relation to Charge 4, sexual assault of a child under 16, you are convicted and sentenced to 18 months imprisonment.

55I direct that 6 months of the sentence on Charge 4 be cumulative on the sentence imposed on Charge 1.  That makes for a total effective sentence of 4 years and 6 months imprisonment. 

56I direct that you serve 3 years before becoming eligible for parole. 

57Further, as you have been convicted of one class 1 offence, and one class 2 offence, you will be required to comply with the reporting requirements imposed by the Sex Offenders Registration Act 2004 for the remainder of your life.

58Pursuant to s 18 of the Sentencing Act 1991 I declare that 22 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

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