Director of Public Prosecutions v Hinton (a pseudonym)

[2024] VCC 1181

IN THE COUNTY COURT OF VICTORIA

AT BENDIGO

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

GLEN HINTON (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Bendigo
DATE OF HEARING:	30 July 2024
DATE OF SENTENCE:	6 August 2024
CASE MAY BE CITED AS:	DPP v Hinton (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1181

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence

Catchwords:              Sexual assault of a child under the age of 16; sexual penetration of a child or lineal descendant.

Legislation Cited:      Crimes Act 1958 (Vic) ss 49D(1), 50C(1), 49D(2A), 50C(3);Criminal Procedure Act 2009 (Vic) sch 1 cl 4A(1); Sentencing Act 1991 (Vic) ss 5(2F), 11A(1), 11A(4), 6B(1)(ac), 5(2), 6F, 6AAA; Sex Offenders Registration Act 2004 (Vic) s 34(1)(c).

Cases Cited:R v Doran [2005] VSCA 271; R v Kien (2000) 116 A Crim R 339; Austin v The Queen (1996) 87 A Crim R 570; R v RLP [2009] VSCA 271; Brown v The Queen (2019) 59 VR 462; DPP v Dalgliesh [2016] VSCA 148.

Sentence:                  Total effective sentence of 13 years’ imprisonment; non-parole period of seven years and 10 months’.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr N. Batten	Office of Public Prosecutions
For the Accused	Mr M. Habib	Docherty Legal

HER HONOUR:

Introduction

1Mr Hinton,[1] from April to December last year, you went about the sexual abuse of your granddaughter. You were 75. You engaged in regular penetration of her in a range of ways. You told yourself she was a willing participant. She was six years old.

[1]A pseudonym.

Charges and maximum penalties

2Glen Hinton, you have pleaded guilty to one charge of sexual assault of a child under 16,[2] and three charges of sexual penetration of a child or lineal descendant (incest).[3]

[2]Crimes Act 1958 (Vic) s 49D(1).

[3]Ibid s 50C(1).

3Each of the four charges are put on a 'course of conduct' basis. The charged period covers 1 April 2023 to 10 December 2023.

4The incest charges, Charges 2, 3 and 4, each describe a different form of penetration: Charge 2 relates to your digital penetration of the vagina of your victim. Charge 3 relates to your penetration of her mouth with your penis, and Charge 4 describes your penetration of her vagina with your tongue.

5Charge 1 carries a maximum penalty of 10 years' imprisonment. Each of Charges 2, 3 and 4 carry a maximum penalty of 25 years' imprisonment.

6Your victim, who I will call Daphne Bailey[4] for the purposes of these reasons, was aged five and six years old. You were her grandfather; her mother's father.  

[4]A pseudonym.

7The charges are put on a 'course of conduct' basis – meaning a range of acts of the same or similar character are contemplated by each charge. I will summarise the facts giving rise to the offending; the specific events the subject of each charge are identified and summarised in a table at [7] of the Prosecution Opening.[5]

[5]Summary of Prosecution Opening for Plea (28 May 2024).

Factual Summary

8In July 2023, your daughter and her husband were living in Echuca. Some time that month they told you they were planning to move to Queensland. You were apparently very upset at this news, and spent more regular time in the family's home, coming for dinner and sometimes staying the night in the spare room.

9During one of these visits, when Daphne was a month shy of her sixth birthday, you and Daphne were outside near the carport. You picked her up under her bottom and she put her legs around your waist. While you held her, you moved your hand over her buttocks in a sexual way. This went on for about three minutes.[6] This incident was proved by admissions you made in your record of interview. You said: 'it escalated from there', and 'it got a bit more frequent'. (Part of Charge 1, sexual assault).

[6]Part of Charge 1.

10The next incident was described by Daphne in her video statement to police. She was home from school one day and her parents were at work. You were in a chair in the living room; she lay across your lap sideways. She remembers wearing her nighty with Peppa Pig on it.  You penetrated her vagina with your finger.[7] She said that you made her vagina hurt and go red. You told her that it was a secret and that she should not tell her parents because if she did you would get into trouble. (Part of Charge 2, sexual penetration of a lineal descendant)

[7]Part of Charge 2.

11In the next incident, Daphne describes you using 'slippery Vaseline' before penetrating her vagina with your finger. You used tissues afterwards to clean the Vaseline from your hands and from her vagina.[8] (Part of Charge 2)

[8]Part of Charge 2.

12The next incident that Daphne describes was an occasion when you were alone with her in the living room and slid your hand under her dress to touch her nipples.[9] (Part of Charge 1)

[9]Part of Charge 1.

13The next incident is one proved by you. You said that you were sitting in the armchair in the living room with your erect penis exposed. You penetrated Daphne's mouth with your penis.[10] (Part of Charge 3) You said there were 'three or four' similar incidents in the lounge room; these also form part of Charge 3. 

[10]Part of Charge 3.

14You rose from the chair and Daphne sat in it, with her underwear removed. You used your tongue in her vagina. You said: 'she was sitting in the chair, she had her legs open, and I had my mouth on her'.[11] (Part of Charge 4)

[11]Part of Charge 4.

15You said a similar incident occurred three or four times, and these also form part of Charge 4.

16You also admitted an occasion on the double bed in the spare room. You described removing your penis from your clothing and penetrating Daphne's mouth.[12] You describe Daphne then lying on her back with her legs open and penetrating her vagina with your tongue. [13] (Part of Charges 3 and 4)

[12]Part of Charge 3.

[13]Part of Charge 4.

17You also described sexually assaulting her during a game of hide and seek near the shed outside. When you found her she jumped into your arms, wrapping her legs around you. You used this moment to touch her vagina over her clothing.[14] (Part of Charge 1)

[14]Part of Charge 1

18You made more general admissions in your record of interview; you said these events were 'frequent'; you said you had made Daphne touch your penis 'two or three times'. (Part of Charge 1)

19There is another incident, the final occasion. You stayed the night with Daphne's parents on the night of 9 December 2023.  Her parents awoke on the Sunday at about 7 am. Her father went back to bed about 10 am; her mother was doing work emails at the kitchen table. You were in the lounge room with Daphne on your lap. Around this time you said you were going back to bed for some sleep. The victim asked her mother if she could go into the spare bedroom with her grandfather to play a game on her iPad. Her mother said yes.

20You both went to the spare bedroom and shut the door. You got onto the bed with Daphne, who I mention again was six years old, and removed her underwear. She lay on her back on the bed. You leant over her, your knees on either side of her body. She removed your penis from your clothing while you penetrated her vagina with your finger.[15] Daphne started to masturbate your penis, moving her hand up and down.[16] You stayed in this position a few minutes before Daphne put her underwear back on. While she did this, you got off the bed and stood, leaning over Daphne, doing up your pants and belt.

[15]Part of Charge 2

[16]Part of Charge 1.

21At this moment, Daphne's mother entered the room. She saw you jump away from the bed. She saw Daphne pull the doona up to cover her chin. Daphne's mother asked: 'what is going on'? You said 'just kissing and cuddling'. Daphne repeated what you had said and said 'just kissing and cuddling'.

22Daphne's mother asked her to go to the living room; she noticed her daughter's underwear was not on properly.

23Once she was alone with you, her mother asked you: 'what the fuck's going on?' and you said again 'just kissing and cuddling'. You went to the bathroom. You emerged and Daphne's mother said again 'what the fuck's going on'. And you said: 'I have been touching her'.

24She told you to leave the house immediately and to never return.

25Shortly afterwards, Daphne indicated to her mother that 'Poppy touched me here' indicating her bottom and breast areas.

26Daphne went to school the following day. After school, Daphne's mum recorded a conversation with Daphne on her phone in which Daphne disclosed a range of sexual offending committed by you against her.

27They went to police soon after. Daphne made a police video statement on 12 December 2023.

28You were arrested that day. When police came for you, you showed signs of having been recently assaulted. You refused to disclose any details of the perpetrator.

29A forensic medical officer assessed you as unfit for interview on account of your injuries and lack of food and sleep. 

30You were remanded into custody to appear in Court on 13 December 2023; you have never applied for bail.

31On 19 January 2024, police visited you at the Metropolitan Remand Centre. You participated in an interview and made admissions to engaging in the conduct I have just described, from the time Daphne was five years old.

32After one adjournment for resolution discussions, you entered a plea of guilty on 17 April 2024.

33I note here that you have no prior convictions.

Nature and gravity of offending

34Your offending was over a period of approximately eight months. You owed your granddaughter only kindness and protection. She was very, very young, she was doing prep at school.  And you, a 75-year-old man, her grandfather, formed a desire for her and put every other consideration behind your decision to pursue that desire.  You convinced yourself, deluded yourself apparently, that she was a willing participant to some degree. But you also knew that what you were doing was profoundly wrong. You demanded her secrecy; you told her not to tell anyone because you would get into trouble. You asked a six-year-old girl, your granddaughter, to maintain her silence for your protection.

35Charge 1 is aggravated by the fact you were her grandfather. In relation to the incest charge, this feature is part of each charge's structure. Each charge is made up of a number of events, covering your persistence.

36You were 75 years old, your victim a five and six year old girl.

37What you did is, frankly, horrifying. You converted your six year old granddaughter into your sexual partner. You betrayed her parents' trust. You violated her body repeatedly. You forced her to engage in acts that are the exclusive domain of consenting adults. You hurt her physically, you exploded the safety of her home environment. You shattered her parents' belief that they had provided a safe and secure home for their daughter.  You fundamentally violated the community's values: that children are to be treated with kindness and dignity, particularly by those who are family members and entrusted with their care.  Children are to be protected by those close to them,  not used for sexual gratification.  Upon those values so much social good, or harm, rests.

38These matters in combination cause me to conclude your offending is objectively extremely serious; your moral culpability is extremely high.

Course of conduct

39Each charge is put under the banner of being part of a 'course of conduct'.[17] They each incorporate multiple incidents of the same offence during the charged period. Some of those incidents are described precisely, either by you, or by Daphne; others are more generally described by you as having occurred on a number of occasions, in addition to the specific particularised events. In sentencing for charges put this way, I must sentence you for the totality of your conduct. The maximum penalty of course is the same.[18] But your offending on each charge is broader than a single-event charge and will therefore attract a higher sentence.

[17]Criminal Procedure Act 2009 (Vic) sch 1 cl 4A(1).

[18]Sentencing Act 1991 (Vic) s 5(2F) (‘Sentencing Act’).

Impact on victims

40Your victim's mother, your daughter, tendered a victim impact statement and I read it carefully.  It is a statement full of explosive rage at your profound betrayal of her daughter, and of her.  What you did has destroyed all her childhood memories of you. She has suffered terribly, unimaginably really, and will continue to do so for a long time. She worries for her daughter's future.

41As for the harm to your granddaughter, she is too small to have any understanding of, or words for, what you did. The law requires me to assume there is profound and ongoing harm caused to her, and I sentence you on that basis. When she grows up, her understanding of what you did to her will develop. This is likely to be very painful.  In contemplation of that event, I record this here for that future woman: you were the vulnerable victim of a series of terrible crimes. You deserved to have a grandfather who protected and spoiled you. You are entirely blameless; you spoke up bravely. You were entitled to believe what all children must believe: that those who care for them will not harm them.  You were gravely violated; you deserved better. 

Personal circumstances

42You are currently 76 years old; at the time of your offending you were 75.

43You are not currently married, but have been married twice, with both of your marriages ending in separation. You have had three children from these marriages. Your eldest son passed away 46 years ago. 

44You were born in Sydney; your family relocated to Victoria and you and your younger sister were raised in Nunawading by your mother and father.

45Throughout your formative years you were subject to physical abuse by your father; you were also exposed to your mother's long-term struggles with alcohol. Your mother passed away at 66 and your father at 92; he struggled with alcohol abuse and dementia in his latter years.

46You attended Nunawading State School and then Blackburn Technical College. You have been employed in various fields since; you worked for ANZ for eight years and as a seaman in the merchant navy for 25 years until the age of 48. After this, you operated your own small business for 18 years, and then worked as a delivery driver.

47You have maintained consistent employment throughout your entire adult life, retiring at the age of 71-72 due to your diagnosis of oesophageal cancer. You received surgery and chemotherapy for that diagnosis, and I understand that you are now in remission. 

48On your plea, your counsel submitted that whilst you experimented with cannabis at a young age, you do not have a history of engaging long term with illicit substances. You have, however, struggled with an extensive history of alcohol use from the age of 15.

49I note that you maintain a relationship with your son, who continues to manage your affairs in the community. Your relationship with your daughter and her family has ceased as a result of your offending.

Matters in mitigation

Pleas of guilty, ‘Doran’ discount

50First, your pleas of guilty are extremely valuable. They are early pleas and remove the need for a child, who is now just seven years old, to be cross examined. There is an enormous value in that, and it will be recognised in a substantial reduction of your sentence.

51Moreover, the content of Charges 3 and 4, and parts of the particular components of the course of conduct charged under Charges 1 and 2 are derived from your answers in your record of interview, and those in a pretext call with Daphne's mother. Your case fits squarely then into the category of cases where the 'Doran discount'[19] falls to be applied. There is a strong public interest recognised in the law encouraging, and being seen to encourage, offenders making a full confession.  With your admissions, you set your case on course for an early plea. You offered details of events that were not described by the complainant in her video statement, you caused two very serious charges to be made out, you gave additional particularisation to the charges that Daphne had already described in part.

[19]R v Doran [2005] VSCA 271.

52You gave these confessions when you were already in custody. That is, when you had a direct experience of the consequences of what you were admitting to.

53Your case must be distinguished from those cases where there would have been no prosecution without the offender's confessions. You were already detected, and the complainant had made her video statement some time before you spoke with police. But you also made a broad admission on the day of your detection 'I have been touching her' (when her mother demanded an explanation), and you gave details which lent Daphne's statements credibility. The video statement, understandably because it was made by a six year old, was imperfect. You perfected it.

54This is a very significant matter to take into account on your sentence.

55I will return to the questions of your distortion of your victim's role when I address the role for specific deterrence in this sentence.

Vulnerability in custody

56A number of features of your incarceration, at this time in your life, make you particularly vulnerable during your term of custody.

57You were diagnosed and treated for oesophageal cancer at 71 and you are now in remission. You suffer from vertigo.

58A psychological report authored by Mr Jeffrey Cummins was tendered on your plea. I note that when you were arrested you were obviously injured to the head and face. You have a history of heavy alcohol use. You were not formally assessed for an Acquired Brain Injury or for dementia, but it was Mr Cummins' opinion that you currently show mild signs of either or both of those conditions. You are experiencing memory difficulties, and confusion. You cannot find the right words sometimes. You appear to be suffering too from mild depression.

59You are in fear of assault.

60Each of these matters individually and together contribute to the imprisonment that you will experience as particularly onerous.

61Now, at 76 years old, you are experiencing custody for the first time in your life. You do not know whether you will live beyond this sentence and ever be at liberty again.  It is a weighty consideration in this sentence that you are likely to spend the whole or a very substantial portion of the remainder of your life in custody.[20] This is not one of those cases where you have enjoyed a lengthy period at liberty after your offending. These matters, by which I mean your vulnerability and the expectation that you may never again be at liberty, do mitigate the sentence in your case.  They do not of course, cause the imposition of a sentence that is not just in all the circumstances.

[20]R v Kien (2000) 116 A Crim R 339 [16]-[17] (Cummins J); Austin v The Queen (1996) 87 A Crim R 570 cited in R v RLP [2009] VSCA 271 [39].

Prospects of rehabilitation

62The psychologist who assessed you found you to meet the criteria for a diagnosis of 'paedophilia (restricted to incest)'.[21]  

[21]Psychological Report authored by Mr Jeffrey Cummins (31 May 2024) [58].

63On your plea, I raised with your counsel the distortions in your thinking about your granddaughter's participation in your offending. It is true that you made genuine and legally significant confessions. But in the course of making those confessions you also revealed that you believed Daphne, your six year old granddaughter, to be enjoying, or a participant in your sexual abuse of her. You were ambivalent about confessing your crimes in detail because you did not want to 'throw her under a bus', likening your admissions to those of an armed robber making a statement against an accomplice.[22]

[22]Record of Interview (19 January 2024) Q&A 234-235; Q&A 498.

64Your confessions are indeed genuine and important, and in the course of making them you reveal a fundamental misapprehension of your granddaughter's role in your offending. She is not an accomplice. She played no part in this other than victim. Your confessions are real but without insight into the grotesque harmfulness of your offending, and the enormous power imbalance attending the 70 year age difference and familial relationship.   

65You have indicated a willingness to undertake programs to reduce your likelihood of reoffending; this sentence too has some work, though diminished by your circumstances, to deter you specifically. You are old now, and increasingly infirm. You are unlikely to have access to any child in your family, and I find it is unlikely you will offend again.

Structural matters

66On Charges 2,3 and 4 you fall to be sentenced as a 'serious sexual offender'; this provision is enlivened by operation of s 6B(1)(ac) of the Sentencing Act; and my decision to sentence you to a term of imprisonment on Charge 1. This is because Charge 1 is a 'course of conduct' charge.

67The prosecution did not submit in this case for a 'disproportionate' sentence, but I am required to have regard to the protection of the community as the principal purpose of this sentence.

68The provision also presumes, unless otherwise ordered, cumulation between Charges 2, 3, and 4.  I will do my best to resolve the tension between these requirements, the application of principal of totality, and the need not to impose a 'crushing' sentence.  This will involve making orders for partial but not total cumulation of the sentences on these charges.

Standard sentence regime

69In addition to all of the matters I must consider pursuant to s 5(2) of the Sentencing Act as I calculate your sentence I must also take into account that the charges are subject to the standard sentencing regime.  

70The standard sentence for Charge 1 is four years.[23] Each of Charges 2,3 and 4 attract the standard sentence of 10 years.[24]

[23]Crimes Act 1958 (n 2) s 49D(2A).

[24]Ibid s 50C(3).

71The standard sentence is the sentence that, taking into account only the objective factors affecting the relative seriousness of what you did, is in the middle range of seriousness, and which provides a 'legislative guidepost' for my consideration of your sentences.  I have taken the standard sentence into account as one of the factors in my instinctive synthesis of all of the sentencing factors in your case. I am still of course required, to assess the nature and gravity of your offending in a conventional way.[25]

[25]Brown v The Queen (2019) 59 VR 462, 473 [37], 479 [55] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).

72I indicate that after this calculus, your sentences will fall somewhat below the 'standard sentence' of 10 years' imprisonment, but will, in my assessment, still meet each of the sentencing purposes in this case.

73I am also required to impose a non-parole period of at least 60 per cent of the head sentence unless I consider it not in the interests of justice to do so.[26]

[26]Sentencing Act 1991 (n 18) s 11A(1), (4).

74In considering the sentencing practice in imposing this sentence, I have had regard only to sentencing practices for these charges that has emerged since the introduction of the standard sentencing regime.  There is a slowly developing sentencing practice for post-standard sentence cases involving incest.  Your case is unlike any of those in particular but I sentence you in that landscape.

Consideration

75Sentencing for the crime of incest (penetration of a lineal descendant) must reflect the community's social values: chief among them is the protection of the personal integrity and physical safety of children.[27] This sentence must be effective denunciation of the profound harm caused to a child, and to her family more generally, by the commission of the crime of incest. This offending shatters the safety and normal expectations of any family, the unit upon which so much social good is built.  

[27]DPP v Dalgliesh [2016] VSCA 148 [123].

76I like to think that people do not need to be deterred on threat of imprisonment  from having sex with young children in their family but there is a role for general deterrence in this sentence; let it be known that these cases wind up being detected sooner or later; stern sentences of imprisonment await those who offend in similar ways to this.

77I regard the role for specific deterrence and protection of the community to be diminished on account of your circumstances, including your age and infirmity.  The following then is my disposition of sentence.

Disposition

78On Charge 1, sexual assault, you are convicted and sentenced to four years' imprisonment.

79On each of Charges 2, 3 and 4, sexual penetration of a lineal descendant you are convicted and sentenced to seven years' imprisonment.

80Charge 3 will be the base sentence. I direct that two and a half years of the sentence on Charges 2 and 4, and one year of the sentence on Charge 1 to be served cumulatively on each other and upon the sentence on Charge 3 making a total effective sentence of 13 years' imprisonment.

81I direct that you are to serve seven years and 10 months' imprisonment before becoming eligible for parole.

Serious Sexual offender declaration

82Pursuant to s 6F of the Sentencing Act1991, I enter into the records of the Court that on Charges 2, 3 and 4 you were sentenced as a serious sexual offender.

SORA

83Because you have been convicted of two class 1 offences, you are liable to reporting obligations under the Sex Offenders Registration Act 2004 for the rest of your life.[28]

[28](Vic) s 34(1)(c).

Presentence detention

84I declare that you have already served 238 days by way of presentence detention.  

S 6 AAA

85I note pursuant to s6AAA of the Sentencing Act, that had you not pleaded guilty but been found guilty after trial, I would have imposed a sentence of 17 and a half years' imprisonment with a non-parole period of 11 years and four months.

86Have I missed any orders, Mr Batten?

87MR BATTEN:  There was an application for a disposal order I think, Your Honour.

88HER HONOUR:  Yes.  What was the material?

89MR BATTEN:  It was in relation to some clothing and other items.

90HER HONOUR:  Yes, I take it there's no opposition, Mr Habib?

91MR HABIB:  No, Your Honour.  It's in relation to the Vaseline that was seized and it is not opposed.

92HER HONOUR:  Yes, thank you.  I make the order for disposal as sought.  That completes this matter.

93I am grateful to counsel for their assistance.  We will adjourn.

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