Director of Public Prosecutions v Hinton
[2019] VCC 1475
•6 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR 19-00597
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BEATRICE HINTON |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 August 2019 | |
DATE OF SENTENCE: | 6 September 2019 | |
CASE MAY BE CITED AS: | DPP v Hinton | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1475 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Sentence – blackmail – false allegation of rape – escalating demands for money
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Roper | Office of Public Prosecutions |
| For the Accused | Mr D. Swan | Victoria Legal Aid |
HER HONOUR:
1 Beatrice Hinton, you have pleaded guilty to a particularly unsavoury and unattractive blackmail. You demanded money from a man you had met on a dating site, threatening to allege, falsely as you acknowledged, that he had raped you if he did not pay.
2 Unfortunately for you, in the face of the increasing intensity of your demands for money, it was he, not you, who made contact with the police.
3 And so it is that you, at the age of 61, come before a court for the first time, charged with an offence so serious Parliament has prescribed a maximum penalty of 15 years' imprisonment for it.
4 The circumstances are these. Three days after first coming across a man on an online dating site, you met him for a coffee or 'breakfast date' for the first time on 12 December 2017. Two days later, you sent him a message asking if you could borrow $20,000 from him. You told him you were in the process of selling a house in India and would repay him when the house was sold. He declined. It would appear from the information that is now available that you were not in the process of selling a house in India. You may have been in the process of seeking to institute legal proceedings to assert that you had a claim in respect of it, but that seems to be as high as it was put before me.
5 Within a week of your first contact with this man, you had told him you wanted to marry him before having sex with him. He told you he was not ready to marry you. The two of you continued to message each other and to meet in person over the next month. Despite your expressed preference for marriage before sex, on two occasions over the next two weeks, the two of you did have sex. In the course of the plea, I was told you acknowledged the sex was, on each occasion, consensual. You sent him messages, telling him you loved him and, at times, ruing the fact you had had sex after telling him you did not believe in sex before marriage. You told him, amongst other things, that you had not had sex since your husband had died and you were sore as a result of the sexual activities with him. It is hard to tell from the texts extracted in the prosecution summary whether your comments about being sore were rueful, surprised, angry, intending to convey some other emotion or were saying different things at different times. In any event, after each occasion when you had had sex with him, you continued to see and message each other and you continued to ask him to lend you $20,000. He continued to decline to do so.
6
It was within about a month after your first contact with this man, on Friday
12 January 2018, that you sent him a text, asking him to deposit $6,500 into your bank account. He declined. You continued over the next 24 hours to demand or plead with him to pay you the money. He continued to refuse. The following morning you asked him to go with you to the bank and withdraw the money that you had demanded. Again, he refused. You then began to abuse him and told him you had medical reports about your condition after the two sexual encounters.
7
Your demands and threats escalated. By 5pm that day, you made your first overt threat to report him to the police if he did not transfer the money (at this stage, still $6,500) to your bank account by 9am the following Monday,
15 January. It was implicit although not explicit at that stage that you were threatening to report him for rape.
8 He did not transfer the money. By 10.36am that Monday, just after the deadline had expired, he had been sent a long text in Italian (his mother tongue and a language you do not speak) demanding he pay you $30,000 or threatening to go to the police. So the amount of $20,000 that had originally been sought had increased to $30,000. The amount of $6,500 that had been demanded between Friday and Monday had also increased to $30,000. The message in Italian was purportedly sent by a man named Joe. The message was sent from your phone.
9 I was told on the plea that your instructions were that Joe was a man you had met online and had had a romantic online relationship with in 2016. He was, I was told, a person to whom you had apparently been duped into lending and subsequently losing your superannuation and your life savings. Why you would enlist Joe’s aid, if that was the case, or he would agree to assist you to escalate your demands, remains unexplained, despite my requests for an explanation.
10 In any event, he again refused to pay you anything. Over the next five days you maintained your demand, extending the deadline ultimately to Friday, 19 January. Two further threats or demands from your phone, in Italian, and purportedly from Joe, were sent as well as three threatening or demanding messages from you. There was also a voice call in which you repeated your demands and asserted you had been raped by him. He continued to refuse to pay anything and to maintain that the sex between the two of you was consensual.
11 Finally, after your demands of 19 January 2018, he went to the police and reported the matter.
12 It was not until six months later, in July 2018, that police interviewed you. When interviewed, you frankly admitted demanding money from the victim. You sought to justify your behaviour by asserting you needed the money and would repay him. You acknowledged you had threatened to allege he had raped you. You gave various answers about whether the sex was consensual or non-consensual. The overwhelming impression from your interview is that you were justifying making a false allegation of rape as a means of increasing the pressure on him to lend you the money you wanted.
13 In any event, as I have noted, you now acknowledge that you were using a threat of making a false allegation of rape to compel him to give you the money you were demanding. On the plea, your counsel expressly stated you acknowledged the sex was consensual.
14 This is shameful, disgraceful and wicked conduct. There are few worse false allegations that can be made against a person than that they have raped someone. The reputational harm to an innocent person, the risk of charge and prosecution, the time, financial and emotional cost of defending oneself against such a serious allegation and the fear of a wrongful conviction and sentence are likely to be deeply felt.
15 And, as his victim impact statement makes clear, this was the impact of your behaviour on your victim. What you did must be condemned and denounced in the strongest of terms. The sentence must serve to deter you, and others minded, from engaging in such behaviour.
16 Wilfully making false allegations of rape for personal gain and threatening to make such a report to the police and therefore institute an investigation causes harm not only to your victim, but to the administration of criminal justice more broadly. If followed through, it diverts time and resources from real cases and real victims. It undermines the right of victims of sexual offences to be treated with trust and respect when they come forward and make allegations of rape and their right to be treated as genuine and truthful unless shown not to be. Conduct such as yours has the capacity to reignite prejudice or perpetuate the rape myths that the criminal justice system has in recent years been at such pains to dispel. Myths such as it is commonplace for people to make false complaints of rape and that false complaints are easy to make and hard to rebut. These myths have for so long led to complainants of sexual assault being treated with a level of disbelief and lack of respect which stands in stark contrast to the respectful and trusting treatment generally afforded victims of other types of offences.
17 It is clear therefore that, subject to considerations personal to you, denunciation and deterrence loom large in the sentencing mix. So too does just punishment.
18 Turning then to matters personal to you. It is difficult, on the materials filed and the matters presented to me on the plea, to know whether what was advanced on your behalf was truthful, reliable or accurate. Much of what I was told is contradictory, confusing and implausible. In saying that, that is no criticism of your counsel. His care in presenting the materials and his clarity was commendable. The problem stems from your instructions themselves.
19 You report that you were born in Kuwait, one of 12 children born to a Portuguese/Indian father and an Indian mother. You report that your family was poor, you were sent to India and brought up by your grandmother and educated at a boarding school. You report not having contact with your parents until you were 13. You reported having a good relationship with your grandmother, who died when you were 16. At 17, you apparently returned to Kuwait and began working in a bank, a career that you pursued throughout your working life. When the Gulf War broke out, you returned to India and, later, went to Dubai and continued working in a bank. It was there in 1990, when in your early 30s, that you first came into contact with the man who became your husband. You married and came to Australia where he was living. You reported your marriage was a happy one. Despite your hopes, it was not blessed by children. In Australia, you and your husband both worked, you in a bank, he as a bus driver.
20 You report that, in 2010, following a workplace injury to his back, your husband stopped working and ultimately decided to return to live in India, where he had lived for some time before your marriage. You accompanied him but hated living in India, became depressed and, on doctor’s advice, after about eight months returned to Australia, leaving your husband.
21
Some years of separation followed, although there were frequent visits by your husband to Australia. Ultimately, he relocated to Australia in 2015.
You had heart surgery in 2013 for pericarditis. You had returned initially to part-time work but suffered chronic pain complications as a result of the surgery. Ultimately you stopped working entirely. It was in the year following his return to Australia in 2016 that your husband, after a short illness, died. You reported being very lonely and isolated after his death.
22 There is some evidence of engagement with mental health services after you returned to Australia from India. There is evidence that you have been diagnosed with a major depressive disorder in about 2013. You have, at least from time-to-time, if not more frequently since then, been engaged with a consultant psychiatrist.
23 You were also assessed, for the purposes of the plea, by Dr Nina Zimmerman, an experienced forensic and consultant psychiatrist. She was provided with a considerable body of materials including reports or letters from your treating psychiatrist. She concluded:
I do not feel there is a clear or direct link between depression and her behaviours and I have no evidence that she was experiencing a relapse of her depression at the time of her offending.
24 You report having little or no contact with your siblings since about the time you left Dubai and came to Australia. Although a bundle of testimonials from friends, neighbours, work colleagues, members of your church community and your general practitioner was tendered on the plea, all of which suggested, in their content as well as volume, that you had extensive social engagement, they also confirm increasing reports of loneliness and isolation following the death of your husband. These character witnesses all expressed surprise at the offending behaviour, expressing the view that it was out of character and that you were deeply ashamed and embarrassed.
25 Although opinions were expressed by Dr Zimmerman about the impact of growing up in poverty, lack of maternal bonding due to your being sent to India to be brought up, your fear of loneliness, your fear of financial insecurity and emotional vulnerability, Dr Zimmerman noted that her information about these matters came primarily from you and therefore the opinions that she expressed are based on that self-report.
26 I am unable, on the material presented to me, to make any findings about your financial circumstances with any degree of comfort. I was shown records indicating you had transferred amounts in excess of $260,000 to various people overseas since 2016. I was told they were paid to people you had met on online dating sites and whose requests for loans or assistance you had, in the course of forming romantic relationships with them, naively acceded to. I was told that you had, by and large, trusted the money that you had advanced would be returned but you now accepted that you had fallen victim to a series of online scammers. I was told this had happened in the past, before you married, when you had been duped of $80,000, your then life savings, when living in Dubai, by another man you had met online, who had promised to marry you and who had then disappeared with your savings.
27 Coming back to more recent times, I was told you were without means, had lived in government housing in Australia since your return in 2010 and that since 2013, following heart surgery, you had been in receipt of a Disability Support Pension. It was not clear whether that was due to your major depressive disorder, to the heart surgery or to a combination of both. I was told that you had discovered, upon your husband's death, that he had, without your knowledge, disposed of or been fleeced of your joint assets in India. How that sits with your ability to send so much money out of the country was unexplained. There was a reference in your recorded interview, picked up by Dr Zimmerman in her report, to you having, at one stage, accepted a transfer of $20,000 in return for the use your bank account, in effect acting as a conduit then to send it overseas. Whether that provides an explanation for all or any of the moneys that you sent between 2016 and now in respect of which I was provided with evidence, is purely speculative and I can make no findings about that.
28 I was told Joe, the apparent author of the Italian language threats to your victim, was a man you had met online in 2016, after your husband’s death. I was told that you had formed a romantic relationship and that you had advanced him all your superannuation in the amount of $243,000 to buy mining or geology equipment. He was apparently a geologist working overseas. I was told that all that money had been lost and that relationship with Joe had come to an end. The money, the $243,000 evidenced in the telegraphic transfer documents I was shown, went not to a person by the name of Joe but to a person by the name of Van Hanh Bing in China. It is unclear if the Joe story is a truthful one and why or how he would have been involved in the making of demands for $30,000 from your victim.
29 I was told you wanted the money from the victim to fund legal proceedings to chase an asset in India, an apartment that apparently you and your husband owned and which he had rented out at no rent for a period of eight years. I was told that you had since decided to abandon the proceedings. I was presented with four testimonials asserting that, at the same time as you were demanding money from your victim, you had borrowed, then repaid, the bulk of a total of $20,000, the amount that you had originally demanded from your victim.
30 Whether these testimonials referring to the advancing of $20,000 and the repayment of $16,500 of that between December 2017 and January 2018 was in order to demonstrate your intention to make good your promise to the victim to repay his money I don’t know. In any event, when asked about whether there were any records in respect of those borrowings and returns, I was told you borrowed the $20,000 from these four people in cash in December 2017 but you kept it and did not send it to India for legal fees, as was your stated purpose, and then repaid the bulk of it in January 2018, again in cash, when you decided not to pursue the legal action.
31 How that sits with the explanation in the prosecution summary that the reason you wanted to borrow the money from your victim was because the person, not four persons, from whom you had borrowed $20,000 for funding the legal proceedings in India wanted the money back, was similarly unable to be explained. How any of that sits with your increasingly desperate assertions that you needed the $20,000 (exactly the same amount of money you had been importuning him from as had been provided apparently by the four testimonial authors before the blackmail started) was again simply unable to be explained.
32 I am left in a position where I am not persuaded you wanted to borrow money to pay legal fees in India or that you had the intention or capacity to repay your victim within a few months. What I am satisfied of is that, within two days of meeting this man, you started to ask him for money and you continued to do so throughout the time you were associated with him, putting increasing pressure on him through various means over that period.
33 I am not persuaded, on the material before me, that you have, yourself, been the victim of multiple scams and been deprived of your money or that you had been duped out of your funds and that, as a result, you had been left poor and vulnerable.
34 I am left with the conclusion that no inference other than that you demanded money from your victim out of a desire to financially benefit yourself is open as an explanation for your behaviour.
35 I accept, based on Dr Zimmerman’s report, that your diagnosis of depression would make imprisonment more onerous for you than for someone without that condition.
36 Whilst I am left with an uneasy feeling I have not been told anything approaching the truth about the reason for your conduct, or in respect of your financial circumstances, I cannot and do not make findings adverse to you in respect of your conduct or your financial circumstances as a result, apart from the finding that the only inference open is that you demanded the money from your victim out of a desire to financially benefit yourself. That seems, in any event, to be consistent with what you told the police.
37 In the end, I am left with nasty offending by a 61 year old of previously good character, who suffers from depression and whose shame and distress as a result of the exposure of her behaviour is, I hope, likely to act as a deterrent from engaging in similar behaviour. It follows therefore that, whilst on the face of it, no sentence, I would have thought, other than one of imprisonment was appropriate for your behaviour, your age, your previous good character, your depression and those matters that tend to suggest you are unlikely to offend in a like manner again point towards the imposition of a community correction order rather than a term of imprisonment. But, as I hope has been abundantly clear from my responses to your behaviour throughout the course of the plea, I take a very dim view of the behaviour and still am of the view that the most appropriate sentence to mark denunciation, just punishment and deterrence is one of imprisonment.
38 I do however consider that those mitigating features in the circumstances justify the imposition of a community corrections order provided it has very strict and punitive conditions attached to it.
39 I had concerns about your medical fitness to do unpaid community work as a component of a community correction order. You are already in receipt of a disability support pension which means there has been a certification by medical practitioners that you were unfit to engage in paid work.
40 I adjourned the plea hearing in order for your treating psychiatrist and your general practitioner to provide assessments of your capacity to perform unpaid community work and any limitations on that. A very helpful psychiatric assessment was provided by your treating psychiatrist in response to very clear and specific questions about what was required in order for your fitness, from a psychiatric point of view, to perform unpaid community work to be properly assessed.
41 A spectacularly unhelpful medical assessment from your general practitioner was provided, although I accept that the same careful and targeted questions were asked of your GP by your legal advisor. It is clear that your general practitioner has crossed the line from being an expert, able to provide independent assistance to the court, to an advocate for your cause.
42 However, I am satisfied that neither you nor your doctors consider that you are unfit psychiatrically, psychologically or physically from performing unpaid community work and nor do Corrections, having seen those reports and conducted their assessment with you.
43 I propose therefore to impose a substantial component of unpaid community work as a condition of your community correction order and to allow a considerable period for it to be performed so as to accommodate the relatively limited number of hours per day that you would be able to engage in unpaid community work, but I note, in any event, that it is unlikely in your circumstances, because it is not the practice of Corrections to require people to perform unpaid community work obligations more than one day a week. So it should not be onerous and should not be a bar to you being able to comply with the conditions of the order. But I want to make it clear that the unpaid community work is a significant component of the punitive purpose of the order and if you are unable or unwilling to perform the unpaid community work, then I will have to reconsider all sentencing options that are open to me.
44 Ms Hinton, I understand that you have had the core components of a community correction order already explained to you in the course of the assessment.
45 OFFENDER: Yes.
46 HER HONOUR: And that you have indicated that you would be prepared to consent to the imposition of a community correction order, understanding what those core components are and the repercussions of failure to comply with them?
47 OFFENDER: Yes.
48 HER HONOUR: Beatrice Hinton, on the one charge of blackmail, to which you have pleaded guilty, you are convicted. You are sentenced to be placed on a community correction order for a period of two years commencing today and ending on 5 September 2021. The mandatory terms that apply to all community correction orders are these: you must not commit another offence for which you could be imprisoned during the time that the order is in force You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011. That means you must not be impaired by drugs or alcohol when you attend at Corrections for any required attendance there, or at their direction and you must submit to drug or alcohol testing if required to do so.
49 You must report to and receive visits from the Secretary or delegate. You must report to the Community Corrections Centre at Dandenong at 46-50 Walker Street, Dandenong within two clear working days after the commencement of this order. Today being Friday, that means by Tuesday afternoon of next week.
50 You must let a community correction officer know within two clear working days if you change your address or your job. You must not leave Victoria without first getting permission to do so from the Secretary or delegate and you must obey all lawful instructions from and directions of the Secretary or delegate.
51 In addition to the mandatory terms, I impose the following terms specific to you. You must perform 200 hours of unpaid community work over the period of two years as directed by the regional manager. If you fail to comply with this condition of the order, the Secretary to the Department of Justice or delegate may give you a direction to perform additional hours of unpaid community work, in accordance with s 83AU of the Sentencing Act 1991.
52 You must be under the supervision of a community correction officer for the period of two years and you must undergo any mental health assessment and treatment and that may include psychological, neuropsychological, psychiatric treatment or treatment in a hospital or residential facility as directed by the regional manager. Do you understand the effect and conditions of this order?
53 OFFENDER: Yes, your Honour.
54 HER HONOUR: Do you consent to it being made?
55 OFFENDER: Yes, your Honour.
56 HER HONOUR: I also make the order for the provision of a forensic sample pursuant to s 464ZF of the Crimes Act. That means that you are required to provide a swab, a buccal swab, to the police for the purpose of obtaining a forensic sample. I must warn you that, if you do not cooperate in the provision of that sample, the police are authorised to use reasonable force to obtain that sample and may well use the more invasive means available, namely the taking of a blood sample. Do you understand that?
57 OFFENDER: Yes, your Honour.
58 HER HONOUR: You must let the 28 days for appeal against this sentence expire before you attend at the Dandenong police station and you then must attend at Dandenong police station to provide that sample within 28 days, do you understand that? That is a complicated time frame and I am sure Mr Swan will explain it to you again. But you must provide the sample, you cannot do it within the next 28 days. You must do it in the 28 days after that.
59 OFFENDER: Yes.
60 HER HONOUR: I declare that pursuant to s 6AAA of the Sentencing Act that, but for your plea of guilty, I would have sentenced you to a term of imprisonment of two years and fixed a period of 12 months as the time that you would have been required to serve before being eligible for parole.
61 I will now have the CCO provided to you. Mr Swan, can you accompany my associate to the dock and make sure your client understands and then signs it, signifying her consent.
62 I have countersigned that CCO. When a copy of that has been made and provided to you after I leave the Bench, Ms Hinton, you will be free to leave the dock.
63 Any other orders that are required to be made?
64 MR ROPER: No, your Honour.
65 HER HONOUR: Do the orders that I have pronounced correctly reflect what I said I intended to do?
66 MR SWAN: Yes, your Honour.
67 MR ROPER: Yes, your Honour.
68 HER HONOUR: I thank counsel for their assistance.
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