Director of Public Prosecutions v Hutchins

[2023] VCC 738

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00165

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY JOHN HUTCHINS

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2023
DATE OF SENTENCE:	26 May 2023
CASE MAY BE CITED AS:	DPP v Hutchins
MEDIUM NEUTRAL CITATION:	[2023] VCC 738

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence

Catchwords:              Plead guilty  – Indecent assault on a male person – Offender was a volunteer at Puffing Billy Railway Network – Two victims aged between 12 and 15 years – Breach of trust – Offender 81 years old – Poor physical health and life expectancy – Low risk of reoffending – Genuine remorse – Historical offending – 44 year delay – COVID-19 pandemic – Verdins – Totality – Good prospects of rehabilitation – General deterrence – Specific deterrence – Serious sexual offender – Disproportionate sentence not suitable.

Legislation Cited:      Crimes Act 1958 s 68(3A), Crimes (Amendment) Act 1967, Sentencing Act 1991 ss 6D, 6AAA, Sex Offenders Registration Act 2004.

Cases Cited:DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148 – Clarkson v The Queen (2011) 32 VR 361 – Worboyes v The Queen [2021] VSCA 169 – The Queen v RPL [2009] VSCA 271 – The Queen v Iles [2009] VSCA 197 – R v Eliasen (1991) 53 A Crim R 391 – R v Verdins & Ors [2007] VSCA 102 – Wu v The Queen [2011] NSWCCA 102 – DPP v Toomey [2006] VSCA 90 – DPP v Buhagiar & Heathcote [1998] 4 VR 540

Sentence:                  Imprisonment for a period of 2 years and 9 months, wholly suspended for a period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C. Paganis	Office of Public Prosecutions
For the Accused	Mr S. Gardner	Wards Barristers & Solicitors

HIS HONOUR:

Introduction

1Anthony John Hutchins, you have pleaded guilty to seven charges of indecent assault of a male person contrary to s 68(3A) of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 1967 and in operation between 8 November 1967 and 28 February 1981, which carries a maximum penalty of 5 years imprisonment.

2You have no prior criminal record.

Circumstances of the offending

3You are currently 81 years of age and at the time of the offending you were aged between 33 and 37.

4You were a volunteer on the Puffing Billy Railway (‘Puffing Billy’) between 1961 and 1987, overseeing track maintenance. As part of this role you would supervise children who also volunteered at Puffing Billy, completing track work and rail recovery. You were also the President of the Victorian Model Railway Society which was a group of model train enthusiasts that met monthly at the Auburn Railway Station building.

Brandon Parker[1]

[1] A pseudonym.

5I first turn to your offending against Brandon Parker which occurred between 1 June 1975 and 31 December 1978. He was between the ages of 12 and 15 years.

6At the time, Mr Parker lived in a self-contained room under his parents’ house in Camberwell, with his father, mother and older siblings.

7On 1 June 1975 you approached Mr Parker while both of you were watching railway works at the level crossing on Riversdale Road in Camberwell. You struck up a conversation with Mr Parker and discovered that you both had an interest in railway activities. At the time, Mr Parker was 12 years of age and you were 33 years of age.

8You discussed your involvement in the Puffing Billy network and asked if he would like to join as a volunteer. He accepted and began performing volunteer work within weeks. You began collecting Mr Parker from his home in your car and transporting him to and from volunteering and other train related activities. Your offending against Mr Parker began soon after he commenced as a volunteer. Your offending would occur at the conclusion of the volunteering day after everyone else had left. You began to sexually abuse Mr Parker at the Belgrave Puffing Billy Train Station engine shed, buildings and surrounds. After volunteering you would either drop Mr Parker to his then home in Camberwell or take him to your then home in Caufield North, where you continued to sexual abuse him.

9During this time, you introduced Mr Parker to the Victorian Model Railway Society and routinely took him to meetings, which were held at the Auburn Railway Station, once per month.

10You also took Mr Parker on several 'train spotting' trips around metropolitan and regional Victoria. These trips were independent of any activities within Puffing Billy or the Victorian Model Railway Society and were instigated by you. You would not return Mr Parker home until the early hours of the following day.

11When with others, performing duties at Puffing Billy in a group setting, you always made sure that you and Mr Parker were the last to leave. Once everyone else had left, you began to sexually abuse Mr Parker at the Belgrave Puffing Billy Train Station engine shed, buildings and surrounds.

12When travelling around 'train spotting' with Mr Parker, you would stop your vehicle at various random locations, ensuring they were in areas not visible to the public. You would then masturbate Mr Parker to ejaculation and then have Mr Parker masturbate you, before you took over until you ejaculated. You would also masturbate yourself, at times, when you were masturbating Mr Parker. You and Mr Parker never spoke during these incidents.

13It was you who instigated each instance of sexual activity with Mr Parker.

14When Mr Parker ceased involvement with Puffing Billy and the Victorian Model Railway Society, you began to randomly turn up unannounced at his home. You would enter Mr Parker’s bedroom, which did not have internal access to the rest of the house where his parents and siblings were. You would then masturbate Mr Parker to ejaculation and had Mr Parker masturbate you, before you took over and ejaculated.

15These visits also included several incidences of Mr Parker performing oral sex on you, and you performing oral sex on Mr Parker.

16Your behaviour with Mr Parker only ceased when you attended at Mr Parker’s home address where friends of his were in attendance, who stood up to you.

17During the four-year offending period, the incidents of sexual activity between you and Mr Parker became routine, occurring almost every time you saw each other.

18Mr Parker made a formal police statement in November 2018.

19The details of the specific offending giving rise to each charge on the indictment in relation to Mr Parker is detailed in the prosecution opening tendered on the plea. As such I will not reproduce that detail in these sentencing reasons.

20On 13 July 2020, Mr Parker made a recorded telephone call with you. During this call, Mr Parker discussed your offending. You apologised to him, saying “I'm terribly sorry for it, it was totally wrong”, “it was totally wrong [Brandon], there's no doubt about it.” and “(I) apologise sincerely”.

21On 3 November 2020, you were arrested and conveyed to the Bairnsdale Police Station for interview.  During the interview with police you made full admissions to;

(a)   masturbating Mr Parker and having him masturbate you,

(b)   performing oral sex on Mr Parker and having him reciprocate 'up to 20 times’ although you were not sure, with 10 to 12 incidences occurring at Mr Parker’s home,

(c)   that these incidences occurred a lot, 'almost every time (you) met him', and

(d)   that you committed these offences because you 'felt the urge to do so', for 'some sexual pleasure (you) guess’ and that it 'made (you) feel sexually excited'. You acknowledged that in retrospect you 'felt pretty bad about it' and that ‘(you were) sure (you) knew it was wrong, but (you) still kept doing it.'

22At the end of the interview you also stated ‘I know I am guilty of having done these and I'm pleading guilty to all of those charges.'

23On 1 September 2020, a search warrant of the Emerald Tourist Railway Board was executed. Membership records obtained by Police on 15 March 2021 confirmed both your and Mr Parker’s association with the Puffing Billy Railway, as well as rosters and internal newsletters, all indicating activities you and Mr Parker were involved in at the time of your offending.

George Hughes[2]

[2] A pseudonym.

24I now turn to your offending against George Hughes, which involves a rolled up charge comprising of two incidences on the same occasion sometime between 1 January 1979 and 12 September 1979. He was approximately 12 years old at the time of your offending.

25In 1978, Mr Hughes began volunteering at Puffing Billy when his Year 6 teacher suggested he do so. Mr Hughes commenced volunteering every Saturday and Sunday, performing various duties including track work and working in the kiosk. At the time, he lived with his father and uncle at Mont Albert and would take the last metropolitan train from Mont Albert Station to Belgrave on Friday nights. He would secretly remain in the carriage until the lights went out and the driver had left so that he could be at Belgrave first thing on Saturday morning.

26After 5 months at Puffing Billy, Mr Hughes observed you discussing track work with other volunteers and wanted to learn more. He asked if you could take him out on the track inspection. You agreed and then took him out on a rail cart to show him what it involved. From that point on, you and Mr Hughes would participate in various projects together on the Puffing Billy Railway.

27A few weeks later, Mr Hughes was at the Emerald Railway Station looking at a locomotive that had been parked there for display. You arrived on a rail cart and began discussing the track works you were going to do early the following morning. Mr Hughes expressed an interest in helping but you said it was too early for him to be there. He then informed you that he had been sleeping in a train carriage at Belgrave on Friday and Saturday nights and could attend early in the morning. You advised him that he could stay in the stationary carriage at the Emerald Railway Station, which was equipped with bunkbeds, a table and chairs, rather than the metropolitan train carriage. You told him you could collect him from the sleeper carriage and take him to work, but that he needed to make sure that no one saw him as he didn’t have formal permission to stay there.

28You took Mr Hughes back to the Belgrave Railway Station and once there, you pulled him aside and gave him a key to the sleeper carriage. You then took him back to the Emerald Railway Station and left him there to stay the night.

29During this trip, you began to tell Mr Hughes how you had had a tough upbringing. Mr Hughes told you about his own troubles. From that time on, Mr Hughes would stay in the Emerald sleeper carriage every Saturday night.

30On a subsequent Friday night, Mr Hughes was unable to access the Emerald sleeper carriage and stayed in a metropolitan train carriage at the Belgrave Railway Station. You were also at Belgrave and happened to see Mr Hughes there. You provided him with food and drink and then took him to Emerald in your vehicle, so he could stay in the sleeper carriage that night.

31A few weeks later, after volunteering, Mr Hughes went to the sleeper carriage. He saw cans of ginger beer and coke, some packets of chips and approximately six pornographic magazines on the table. He drank the ginger beer and ate the chips before removing his clothing, leaving his underwear on, and getting into one of the bunk beds. Later that evening you entered the carriage affected by alcohol and carrying alcoholic drinks. You sat at the table while Mr Hughes remained sitting on the bunk bed. You asked him if he had looked at the pornographic magazines before becoming angry when you noticed that he had consumed the ginger beer. After 15 minutes, you calmed down and left the carriage. You returned 30 minutes later, with additional alcohol, and sat at the table again. You apologised for your outburst and began to tell him about your poor upbringing. You said that you and Mr Hughes were mates and that you both knew what each other was going through.

32You continued to consume alcohol and became very drunk. You then sat next to Mr Hughes on his bunk bed. He became uncomfortable and moved away. You put your hand on Mr Hughes’ shoulder and told him ‘[n]o no, it’s ok, I am not going to hurt you, we are mates and look out for each other’. You moved closer to him and he continued to move away before saying ‘[w]hat, are you afraid of me now?’. Feeling uncomfortable and unable to move further away from you, Mr Hughes began to move to another bunk bed on the opposite side of the carriage. As he was in the process of doing so, you, without warning, pushed him in the back with both of your hands and guided him over to the opposite bunk bed. You pushed him with one of his hands in his right shoulder, holding him face down on the bunk. His bottom half was turned so his knees were facing out to the right. You then used one of your hands to pull down Mr Hughes’ underwear so that his buttocks was exposed. You touched the exterior of his anus with your fingers. You did not say anything but made a ‘grunting’ noise. Mr Hughes resisted but you continued to hold him down with some force. This continued for approximately 15 to 20 seconds, before you suddenly stopped and left the carriage to vomit outside. Mr Hughes ran out of the carriage towards the Emerald Police Station. He banged on the door of the police station and rang the bell but could not raise any Police Officers. While doing this, he heard a vehicle approach and you yell at him. He turned around and saw you driving off. After 10 to 15 minutes, he returned to the sleeper carriage and went to sleep.

33Later in the night, you returned to the sleeper carriage which woke up Mr Hughes. You went straight to him, pulled him off the bunk bed and placed him on the carriage floor. You then placed him back on the bed on his left side, with his upper body on the bunk and his lower body hanging off it. You used your left hand to push down his right shoulder, twisting his body, so he was face down on the bunk. He tried kicking to escape but you were too strong and overpowered him. While holding him down you pulled down his underwear, exposing his buttocks again and penetrated his anus with your finger. Mr Hughes stopped resisting and was in considerable pain. You did not say anything. Mr Hughes could smell alcohol and vomit on you.

34When you stopped, you returned to your seat at the table. Mr Hughes moved as far away from you as possible and you said words to the effect of ‘if you tell anyone about this, no one is going to believe you’. You started to apologise, saying that everyone does things they do not normally do when they are drunk. You then became angry and Mr Hughes reassured you that he wasn’t going to tell anyone. You repeatedly told him that no one would believe him if he complained. You left the carriage and Mr Hughes went to the toilet. He was unable to pass stool because of the pain. When cleaning himself, he noticed that he was bleeding from his anus. Mr Hughes returned to the sleeper carriage and slept with some knives he located, to protect himself in the event you returned.

35The next morning, you attended the carriage to collect Mr Hughes but he refused to go. You left and later returned with another person. Mr Hughes agreed to get into the cart before travelling to the Belgrave Railway Station. When you arrived, you placed a $50 note into Mr Hughes’ shirt pocket. Later that day, when in a group setting, you verbally abused him and told him to get away. This involved profanity, which was heard by supervisors. Mr Hughes was told to leave Puffing Billy for the day.

36Mr Hughes never sought medical attention for the pain due to being embarrassed and ashamed of what had occurred.

37Sometime in 2021, Mr Hughes was searching “Puffing Billy” on Google, where he came across an article which discussed Puffing Billy paedophiles. A photograph of you at Puffing Billy reminded Mr Hughes of your offending.

38In August 2021, Mr Hughes contacted the Victorian Ombudsman’s office and disclosed that, as a child, he had been sexually abused by you at Puffing Billy. On 26 and 27 August 2021, Mr Hughes made a statement. The two detectives who took his statement were the only two people that Mr Hughes told about what happened to him at the time.

39You were arrested on 30 August 2021 and waived your right to be interviewed in relation to the offending against Mr Hughes.

Nature and gravity of the offending

40Sexual offending against young people under the care of adults is very serious.  The victims of such offending are vulnerable and reliant on adults to care for them whether that be as a parent or, as was the case here, where you were supervising children while they volunteered at Puffing Billy.  Children are entitled to feel safe in circumstances such as those presented here where the victims were engaged in innocent and otherwise enjoyable activities.

41Further, it is well settled that 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.[3]

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

42In assessing the seriousness of your offending I also take into account that it was opportunistic, of long duration, involved two complainants and numerous occasions that have been rolled up into the seven charges on the indictment.

43What you did was take advantage of the trust the two complainants had in you as their supervisor and mentor. In each instance when engaging in otherwise innocuous activities such as assisting at the Puffing Billy Railway or attending trainspotting trips, you took advantage of the situation and sexually assaulted them.

44Mr Gardner, who appeared on your behalf, sensibly conceded that offending was serious and that it was motivated by your own desire for sexual gratification.

Victim Impact Statement

45Two victim impact statements were prepared by Mr Parker dated 27 February 2023 and 1 May 2023. At the plea the most recent of those statements was read in open court.

46Mr Parker eloquently expressed how he suppressed the negative emotions caused by your offending for some forty years, and how he internalised the guilt, hurt, embarrassment, shame and disgust he has felt since childhood. He reflected how he went from the head altar boy and form captain at school to drinking at age 14, self-harming and getting expelled at age 15.  He said that your offending has caused him to have an unhealthy distrust of most people, something which has affected his finances, career, adult friendships and marriage. He now suffers from Post-Traumatic Stress Disorder, anxiety, depression and alcoholism stemming from his childhood trauma. He said your offending also influences the way he raises his own children and how innocent events or activities in their lives trigger physical and emotional reactions within him. He worries about what impact your offending now has on his own children.

47What is plain from the reading of victim impact statements is that offending of this nature does not only devastatingly affect the primary victim but significantly impacts a wide range of their family members, changing their lives and relationships indefinitely.

Personal circumstances

48You are now 81 years of age. You were aged between 33 and 37 years of age at the time of the offending.

49You were born and raised in Melbourne with your parents and eight siblings. As the eldest child, you would often care for your younger siblings. You were raised in a stable, secure, loving and supportive environment, noting that your father, who was a respected police officer, was strict but not vicious or cruel.

50You relocated to Shepparton at the age of eight where you continued to enjoy a supportive and successful school and home life. You enjoyed success in various sports and excelled academically.

51You completed high school and attended a tertiary equivalent of RMIT, training as an engineer. You then worked as a technical officer for the Department of Defence for 25 years, while also volunteering at Puffing Billy to support your interest in civil engineering. Following incarceration in 1987, and after serving less than your minimal term of 4 years, you worked for a further 28 years in sheet metal maintenance and then antenna maintenance in regional Victoria, retiring at age 76.

52You did not receive any sexual education which left you ignorant in relation to sexual matters. While you described yourself as bisexual and dated women, you have never been sexually intimate with a female. When you were 17, you had an intimate relationship with a boy who was the same age as you, which ceased after a few months. In adulthood, while you had casual sexual relationships with other men they too did not evolve into intimate relationships. You have only ever lived with your family or on your own.

53While you did not have a prior criminal history at the time of the offending currently before this Court, in 1987, you pleaded guilty to 66 charges of sexual offending against six male victims who were aged between 13 and 17. You received a total effective sentence of 6 years’ imprisonment with a minimum non-parole period of 4 years’. During the legal process and while in custody, you reflected on the impacts of your offending and its abhorrent nature, and developed genuine empathy for the victims. While the sentencing judge requested that the authorities provide you with relevant sex offender treatment, you report that you received no such treatment. Despite this, you were considered a model prisoner and left custody with no desire to reoffend. Upon release, your father helped you relocate to Bairnsdale so you could be away from Melbourne.

54Your offending has significantly reduced your support network. Many of your siblings are estranged from you, however you have a relationship with a brother and friend. Two of your siblings are now deceased.

55Turning to your physical health. You are categorised as morbidly obese, are at high risk of falls and require the assistance of a walker. You have range of medical conditions including cardiac disease, congestive cardiac failure, kidney disease, hypertension, anaemia, chronic renal disease, diabetes, cataracts and osteoarthritis. You have undergone heart surgery. You have a catheter connected to your bladder that requires changing every six weeks with a drainage tap required to be changed weekly. You have ulcers on your right leg that require dressing every second day. You are prescribed a number of medications for your various conditions. Your general practitioner, Dr Bob Irungu, reported that you will need to be cared for in a nursing home if you were to have another catastrophic health event. Dr Irungu assessed your life expectancy as limited.

56A report dated 25 February 2023 was prepared by Dr Dion Gee, forensic psychologist, and was tendered on the plea. The report provides a detailed personal and psychological history. The report also provides details of your many physical ailments. Dr Gee also conducted a number of tests, including assessments as to risk of reoffending.  I have read the report and taken its contents into account.

57In Dr Gee’s opinion, you do not present with psychopathology suggestive of an enduring psychotic illness, nor did you display pathology suggestive of an enduring mood disorder. You also do not meet the criteria for Paedophilic Disorder. You do however, present with several personality traits that at times compromised your capacity to function productively. Your detachment and disinhibition traits causes you to avoid socio-emotional experiences and gravitate towards impulsive behaviours motivated by immediate gratification without regard for future consequences. Dr Gee opined that your aberrant behaviour fell within the avoidant-passive pathway to offending, that being that while you may have a desire to avoid sexually aberrant behaviour, you lack the skills and competencies to meet your needs in a more adaptive, prosocial and meaningful way.

58Dr Gee reported that you struggled to appreciate links between your mental functioning and past behaviour, but that the historic nature of the offending, your age and compromised health likely contributed to this. While Dr Gee was of the view that there was a clear nexus between your offending and your limited social and intimacy connectedness, compromised psychosexual functioning, deviant sexual arousal and impaired self-regulation, he assessed your prospects of rehabilitation as good to very good, if you were to access suitable physical, psychoeducational and psychosocial interventions. You expressed a willingness to attend sexual offence-specific intervention programs if required.

59Dr Gee assessed your risk of reoffending as low. He notes that your enhanced risk of mental deterioration, the limited medical support available in a custodial environment and further limitations to your already small support network would see imprisonment weigh more heavily on you than that of a person in normal mental and physical health. A term of incarceration would also reinforce your avoidant behaviour and further embed an inept and self-critical identity.

Sentencing considerations

60First is your plea of guilty. Your plea was entered following a Sentence Indication Hearing before me. You had previously offered to plead guilty in relation to the offending against Mr Parker, which ultimately represents the conduct on this indictment, prior to the Committal Mention in August 2021. This was rejected by the prosecution and the offending in relation to Mr Hughes was then added to the current indictment. Mr Parker was subject to cross-examination at the committal hearing, albeit in a sensitive way and limited to other matters now not before this Court.

61Your plea demonstrates your acceptance of responsibility and willingness to facilitate the course of justice by concluding the matter as soon as practicable. It has avoided the need for a trial and most importantly, your plea has spared the victims from having to give evidence at trial.

62In relation to the offending against Mr Hughes, it was submitted that you have no recollection of the conduct as described. It was submitted that the facts attributed to the offender do not accord with you or your memory of your life at the time. The complainant states that he recovered the memory of the offending many years later. As such it was submitted that the plea in relation to Mr Hughes is particularly significant as you abandoned an arguable defence in order to conclude the matter.

63The plea carries additional weight which must be reflected in a further amelioration in sentence, as the plea was entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[4]

[4] Worboyes v The Queen [2021] VSCA 169, [39].

64In relation to Mr Parker, it was submitted that in addition to your plea of guilty you have demonstrated genuine remorse. Mr Gardner, who appeared on your behalf, submitted that by accepting responsibility for your offending in the record of interview and your frank admissions during the pre-text telephone call, clearly demonstrate your genuine remorse. Mr Parker remarked at the Committal Hearing that your admissions provided a form of relief and closure for him. In the circumstances, I accept you have demonstrated genuine remorse in relation to your offending against Mr Parker.

65Your age is relevant in this instance, in combination with your serious health issues. I take into account the relevant principles such as those summarised in The Queen v RPL.[5] I accept that as a man of 81 years, your advancing age in combination with your declining health is likely to make imprisonment more burdensome for you. However, while age is an important consideration, the authorities make abundantly clear that in relation to advancing age and ill health, those matters alone do not justify the imposition of an inappropriately low sentence.

[5] [2009] VSCA 271, [39]. See also The Queen v Iles [2009] VSCA 197, [19]-[35].

66More specifically, the principles in relation to ill health are well established. Physical health or disability may be relevant in two ways. First, where imprisonment will be a greater burden because of the offender's health, and secondly, where there is a serious risk of imprisonment having a grave effect on the offender's health.[6]

[6] R v Eliasen (1991) 53 A Crim R 391, 396-97.

67It is self-evident that given the combination of health issues you suffer and the serious nature of a number of them, imprisonment would be a greater burden for you. It is likely that because of your high needs you would be required to serve any sentence in high security prison in order to facilitate and access necessary medical services, while you would be otherwise be classified to be housed in a low security environment.

68Mr Gardner submitted that based on the findings and the opinion of Dr Gee, Verdins[7] principles five and six are enlivened. Dr Gee is of the opinion that incarceration would weigh more heavily on you than on a person of normal mental health and that you would present with an enhanced risk of a deterioration of your mental health. Ms Paganis who appeared on behalf of the Director of Public Prosecutions accepted that Verdins principles five and six have application.

[7]R v Verdins & Ors [2007] VSCA 102.

69It was submitted on your behalf that delay should be taken into account in two respects. First, that the time between the offending to the conclusion of this matter is significant. It is approximately 44 years since your offending. It was further submitted that the term of imprisonment you served in the late 1980’s had a profound impact on you and your commitment to never reoffend.

70Secondly, in the traditional sense, delay was raised in relation to the prosecution itself in that the complaint by Mr Parker was made in November 2018, with Mr Hughes’ complaint occurring in August 2021. The pre-text telephone call occurred in July 2020 and you were arrested in November 2020. It is now mid-2023. I accept that a delay of 44 years since the offending, and almost two years’ between charge and sentence, can be taken in to account in your favour and, at your age, has a greater impact than if you were younger.

71Mr Gardner submitted that although the delay in complaint is not to be attributed to Mr Parker and Mr Hughes, had they made a complaint at the time of your previous offending, the delay has prevented you from benefiting from having this matter concluded in the approximate time of the previous matter to which you were sentenced. Thus totality is enlivened. Ms Paganis did not take issue with this submission.

72The principle of totality can be applicable in many circumstances including where an offender remains silent or where the offending comes to light many years later.[8] In your circumstances the offending precedes the further offending that occurred in the early 1980’s, postdating this offending by some five to ten years’.

[8] Wu v The Queen [2011] NSWCCA 102, [53].

73I now turn to rehabilitation. As noted above, your incarceration in the late 1980’s had a profound impact. You developed insight into your conduct and you have not reoffended for some 38 years’ since the last offence in 1985. Thus it was submitted that your rehabilitation has been sustained. I accept that submission.

74General deterrence remains the prominent sentencing consideration together with denunciation of your conduct. Your conduct was motivated by your own sexual desire, knowing that you were breaching your position of trust. While you have not reoffended since your time in custody and have lived a relatively quiet life since then, living a blameless life for that extended period does not outweigh the importance of general deterrence and denunciation.[9]

[9]DPP v Toomey [2006] VSCA 90.

75As to specific deterrence, in my view, there is little need to give that principle any weight in the sentencing discretion. You have not reoffended since your release from custody 38 years ago. Further, your significant health conditions, advanced age and limited life expectancy militate against the risk of reoffending.

76As indecent assault of a male child is a 'serious offender' offence and you have two or more convictions for relevant sexual offences, you fall to be sentenced as a serious sexual offender. Section 6D of the Sentencing Act1991 (Sentencing Act’) provides that when sentencing you as a serious sexual offender I must have regard to the protection of the community as the principal purpose for which the sentence is imposed. In my view, protection of the community is able to be achieved by the sentence that I will impose without the need for a disproportionate sentence. Further, the prosecution does not contend for such a sentence.

77It was submitted that in all the circumstances a wholly suspended sentence is able to meet the relevant sentencing considerations, including general deterrence. As was noted in DPP v Buhagiar & Heathcote;[10]

'a suspended sentence of imprisonment is not an unconditional release or a mere exercise in leniency. Rather, it is an order made in the community's interest and generally designed to prevent re-offending.'[11] 

[10] [1998] 4 VR 540.

[11] Ibid, 547.

78In my view, in all the circumstance, a term of imprisonment is required. However I am also of the view that the term of imprisonment I impose, if wholly suspended, is still able to meet the relevant sentencing considerations in this instance.

Sentence

79Mr Hutchins, please stand.

80Anthony John Hutchins, on Charges 1 and 2, indecent assault of a male person, you are convicted and sentenced to 18 months imprisonment on each charge. On Charges 3, 4 and 7, indecent assault of a male person, you are convicted and sentenced to 2 years imprisonment on each charge. On Charges 5 and 6, indecent assault of a male person, you are convicted and sentenced to 12 months imprisonment on each charge.

81I direct that 3 months on the sentence on Charges 1, 4 and 7 be served cumulatively on each other and on Charge 3 which is the base charge, making for a total effective sentence of 2 years and 9 months imprisonment. That sentence will be wholly suspended for a period of 3 years.

82I am required to warn you that if you commit any offence punishable by imprisonment, whether in or outside of Victoria during the period of suspension, you will be brought back to this Court to be dealt with.  In that circumstance, unless you are able to provide exceptional circumstances, you may be required to serve the sentence I have imposed.

83Further, as you have been convicted of three or more Class 2 offences, you will be required to comply with the reporting requirements imposed by the Sex Offenders Registration Act 2004 for the remainder of your life.

84Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentence you to a period of 5 years imprisonment with a non-parole period of 2 years and 6 months.