Director of Public Prosecutions v Hutchins
[2021] VCC 1974
•8 July 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT SHEPPARTON
CRIMINAL JURISDICTION
CR 20-00411
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MALCOLM HUTCHINS |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
WHERE HELD: | Shepparton |
DATE OF HEARING: | |
DATE OF SENTENCE: | 8 July 2021 |
CASE MAY BE CITED AS: | DPP v Hutchins |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1974 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | Office of Public Prosecutions |
For the Accused | Mr L. Richter. | Stary Norton Halphen |
HIS HONOUR:
1 You can stay seated, Mr Hutchins. Malcolm Hutchins, you have been convicted by a jury after a short trial of two charges of rape. Rape carries a maximum penalty of 25 years imprisonment.
2 You are now 63 years of age and the offending occurred in late 2016. You conducted a trial and accordingly do not get the benefit of a plea of guilty. That does not aggravate the situation but it clearly indicates to me in the overall circumstances here, that you have absolutely no remorse and absolutely no insight into the wrongness of what you have done, not only on this but on other occasions, it would appear.
3 You do have other prior convictions of significance. You have sexual penetration and indecent assault going back to the late eighties and 1990 and I do not know what the details of those are. But you do have effectively, two prior matters to this, which involve sexual penetration of a child and you have subsequent matters, which of course do not aggravate your situation but simply put it into an overall context in terms of rehabilitation and the risk of reoffending.
4 You are to be sentenced as a serious sex offender on both charges. I am aware that means that these sentences are to be served cumulatively unless otherwise ordered. I will be otherwise so ordering. I am aware that community protection becomes the principle sentencing purpose and the Crown do not seek a disproportionate sentence, which I would not have granted in any event. You are already on the sex offenders register for life, so no order sought in respect of that.
5 You are currently undergoing a sentence of eight years and four months, with a minimum term of five years for offending of a sexual nature and I will deal with that again briefly in a moment.
6 A summary of the offending as briefly as I can, is that at the time of the offending you were in your late fifties and the victim was in her forties. She was residing in Seymour with her three year old daughter. At the beginning of November of 2016, she was talking to a long-time friend of hers and that friend told her that her tenant and friend, that is, you, could come to her house and give her a massage on a regular basis.
7 Ms Brockman[1], the victim, was suffering various ailments and accordingly, the neighbour arranged for you to give her a massage initially and that occurred.
[1]A pseudonym.
8 On about 29 November 2016, you and your neighbour arrived at the complainant's house in Seymour, had a coffee and chatted. You went into the loungeroom and set up your massage table. You told the complainant to take all her clothes off and get on the table and I accept it was you who told her to do that.
9 She complied, then hopped onto the table and a towel was placed over her. There was also a towel underneath her. You then began the massage, firstly, while she was lying on her stomach. The neighbour remained in the loungeroom during this and as the complainant turned over onto her back you apparently said something about needing a latte or a coffee and the neighbour then left the address.
10 She was gone for a significant period of time and I am not about to enter into a debate about how long that was. Certainly, more than ten or so minutes, I would have thought.
11 Within minutes of the neighbour leaving, you began to massage Ms Brockman's inner thighs underneath the towel. You then ran your hand down over her vagina and touched her clitoris. The Crown opening has far more detail as to how that occurred. The trial was run simply on the basis that if you touched her clitoris as a matter or anatomical definition, then there must have been a degree of penetration.
12 You did that on a number of occasions and then again, on a number of occasions. In that first incident, Ms Brockman estimated it at between five and eight times. She said that she believed it was no accident. She said she was in shock and did not say anything, which is often the case in such circumstances.
13 She also said that the massage was extremely painful and the worst she had ever had or ever endured. I do not accept that necessarily. This is not a charge of giving a bad massage. That is not the charge at all and takes it neither one way or the other.
14 After this had occurred, as I said, she was in shock. She says that she rang her mother and complained about it. Her mother's evidence is that she thought she was told of two occasions in one conversation. Again, I do not think that matters a great deal in these overall circumstances.
15 There was discussion that took place about a further massage and a note, which has been tendered as an exhibit was made, which indicated that on the face of it at least, you were to re-attend on 6 December, that would appear in the morning, to give another massage.
16 You attended on the morning of the 6th. You told her that your wife was undergoing a procedure or was going to be undergoing a procedure and in fact, that was the case on that day. She did so in Seymour.
17 In any event, on this particular occasion the two of you had a cup of coffee and a chat. You went into the loungeroom and set up the massage table. Again, told her to take all her clothes off, which she did and you then began to massage her under the towel. You massaged her back and asked her to roll over, again, with her front being covered by the towel. You began to massage her inner thighs underneath the towel. Then ran your hand down over her vagina and put your fingers onto her clitoris. That again occurred on a number of occasions, two or three from what I can gather.
18 You then said during the course of that and it is a little bit difficult to work out the exact timing of it, that to her that you essentially have to have an orgasm to make the massage beneficial and it was clear at that time you were indeed touching or had just touched and were about to touch again her clitoris.
19 She said that she grabbed your wrist and stated firmly that she did not want to do that and pushed your hand away. You persisted and apparently, in terms of what her state of mind was when she spoke to police, you said that she needed an orgasm to release the chemicals to make the massage beneficial. That is not evidence of the truth of any of that. It is just a strange piece of knowledge for her to have. If you had not said it to her, indeed, you essentially confirmed what she said occurred in your record of interview.
20 Again, she said she was in considerable physical pain after the massage and I am certainly not finding that beyond reasonable doubt. On any basis, she did ring her mother on the next day or very shortly thereafter to complain of the massaging and the touching of her groin. Her mother gave evidence that she had been told that you had interfered with her clit or her fanny or something along those lines.
21 On 11 July of 2017 you were arrested and you were taken to Yea Police Station. You were interviewed. You denied that there was a second massage and denied that any offending had occurred. The circumstances are in this trial that you maintained that position throughout and it was made, a comment from me, very difficult for your counsel. In any event, they were your instructions.
22 I have absolutely no doubt that a second massage took place and I have absolutely no doubt that that is what the jury found.
23 The fact of the matter is that you were having in your interview, gone through in such detail how there was no such matter, makes it a lie of real significance, not in terms of consciousness of guilt but I would find that it destroyed your credibility almost entirely, if not entirely.
24 You did say it was possible you touched her vagina but if it happened it was inadvertent and definitely not deliberate and I do not think that takes the matter any further. As I indicated, you also told police or volunteered to police about the orgasm making it beneficial and she probably needed a good orgasm and concepts like that, which I am sure the jury regarded as supportive of her description as to what took place.
25 She has filed and it was read out by the learned prosecutor, a victim impact statement. That victim impact statement eloquently describes the damage that is been caused to her as a result of this offending that caused her ongoing psychological difficulties. Those psychological difficulties would appear to have manifested in physical difficulties as well and certainly, the consequences to her, as she describes them, have been significant indeed. That is obviously part and parcel as to why rape is regarded as such a serious crime.
26 I have received very helpful submissions from your counsel, which clearly I have read a couple of times and taken into account. Firstly, this is the situation where, in terms of endeavouring to make some sort of assessment of the gravity, there were no threats made. There was no force used. There were no bribes offered and essentially, those, what would normally be aggravating features, are not present.
27 However, in this particular trial I have had the opportunity of watching you in a record of interview for 45 minutes or so and watching her give evidence and be cross-examined for an hour or so.
28 It is clear to me that in your record of interview that you are a manipulative person and that the way the interview was conducted you were certainly not unintelligent and showed a degree of control over what was going on. Your answers were calculated and I took the view that you were lying clearly, as did the jury.
29 In terms of her evidence, she has come across to me as a relatively simple person. She struggled sometimes with what questions meant and had difficulty expressing herself. She said in evidence that she was just in shock and the reason that the second massage took place was because she just trusted her friend, that is, the neighbour and trusted you and just hoped, as is so often the case in these circumstances, particularly with children, that it just simply would not happen again or something or other, go away.
30 After robust debate with your counsel, I am not prepared to find beyond reasonable doubt that there was some sort of legal need to find vulnerability about her. But the fact of the matter is that you came across as a manipulative, calculating person. She came across as a simple soul and in those circumstances I have no hesitation in finding beyond doubt that there was an extreme power disbalance between the two of you. And obviously, it goes without saying, that you took advantage of her.
31 That is part and parcel of assessing the objective seriousness of it. Overall and I am not going to go into the debate we had about your earlier offending and the sentence you got for that. Overall, it is my view that the offending is at the middle towards lower range of rape, objectively, though what that means I have always struggled to understand.
32 All rapes are serious. All rapes are a violation of in this case a woman's personal space and her right to protect her own body.
33 You did this not just on one occasion but you came back and did it again. And it was only then that she finally worked up would appear to have been the courage or to tell you stop. That clearly in my view, came as a response to you telling her that you were trying to apparently give her an orgasm.
34 That is the way in which I have perceived the objective nature of this particular offending. I think it is a dangerous practice to try and delineate or define these things too closely. It remains a serious offence. As I said, she is a simple soul. You are not and that power imbalance, as is so often the case with rape, was certainly present here.
35 It is a situation where a gaol sentence of significant proportions is the only sentencing option available. As I have indicated you are undergoing a sentence of eight years and four months with a minimum term of five years. You were sentenced to that in February of 2019 by Judge Wraight. I have had the benefit of being able to read Judge Wraight's sentencing remarks in some detail and it has taken - it has allowed me to attach those to these my sentencing remarks and saves me going through a lot of your prior history.
36 That offending involved a somewhat intellectually impaired, effectively, step-child but that is not - which you were simply charged with under your care of sex penetrations over an extended period of time again on a couple of occasions. You pleaded not guilty to that. She apparently was lying as well as Ms Brockman was apparently lying and it just confirms what I said before about your lack of insight into this sort of offending.
37 I am not going to make comparisons between the two types of offending. They are both different crimes, one against a child, one against an adult. One involving a lack of consent, one not, they are both serious and I think in a situation like that, comparisons would be odious.
38 This offending clearly calls for the application of general deterrence, specific deterrence as well in your situations and if I take the view that we are all undergoing a sentence of significant proportions, if that is not enough to deter you, nothing much that I do will but again, I do have to take that into account.
39 In this situation there is no Verdins or insofar as psychological issues are concerned and/or any such principle. It is a circumstance where it calls for the denunciation, the appropriate punishment and a level of community protection. The community protection is required by legislation but I would have taken it into account in any event.
40 You are now 63. So, the sentence you will have to undergo, bearing in mind I will have to assume that you will serve the lot and it will be sufficient to serve as a protection of the community, I would be very, very surprised if upon your ultimate release if that that occurs, that you would do this again.
41 I then look to matters personal to yourself. Your background is covered in Judge Wraight's sentencing remarks. You were born in Portland. Your family was apparently relatively transient. You never knew your biological father. You were brought up, left school at a relatively early age. You have worked all your life. You have had various jobs doing this, that and the other. You have clearly moved around the country. I notice an indecent assault prior from Cairns and in terms of doing what I can gather farm jobs, that type of thing.
42 Since you have been in gaol you have continued to work. Your counsel has handed me a laudably large amount of certificates and the like that you have been able to do in gaol whilst you have been undergoing the sentence. You are currently and will remain undoubtedly at Ararat and I will be dealing with that again in a moment.
43 Clearly you would be in protection but so is everybody else. So, it is of no real significance in these particular circumstances. I am not told anything about - you had a partner at the time this offending occurred. I am not being told anything about how that has all ended up. They were matters that were put to Judge Wraight as being mitigatory for you in a sense of not mercy, not taking it to that level but certainly circumstances that he took into account. I have got no real information on that and I will just work on what it was that Judge Wraight was told.
44 In this particular situation you have in your favour I suppose, if I can describe it as that, the principles of totality. I must be careful to avoid a crushing sentence. At the same time, I must also impose a sentence which accurately reflects the seriousness of what you did and the community values that are involved in all this.
45 The sentence that you have undergone so far has been done to a large extent during the time of COVID. I accept that that, whilst Ballarat has not had the lockdowns that other gaols have had, that that has made it more personally isolating for you, being unable to have visits. It is clear in the situation such as this I think, that time has pretty much proved us wrong that people in gaol were vulnerable because of an inability to look after their own circumstances. That has not worked out that way, fortunately I think but I certainly take into account that there is an anxiety, particularly the older prisoners that - and vulnerable prisoners, as you would be. I find that in the balance of probabilities that they would contract that virus and be very ill, if not die.
46 So, all those matters I do take into account. They were matters at the time Judge Wraight sentenced you he would not have been aware of quite clearly.
47 Also, you do have significant physical disabilities. You are by and large in reasonably good health your counsel concedes. However, you do have chronic abdominal pain and you have had four previous bowel resections and you have a significant number of bowel difficulties. You have chronic and severe pancreatitis and I accept that those matters were in existence at the time you were sentenced by Judge Wraight and as I pointed out to your counsel, they were in existence at the time that you were sexually offending against a 16 or 17 year old girl in early 2017.
48 So, I have got some suspicions to the level of disability that they do create for you but I do accept that they are significant. They will make it harder for you in gaol than it would for somebody else. I also accept in terms of the fact that you have limitation on the medications you are able to take. Clearly, in gaol you are not allowed to take any opiate based pain killers.
49 You do suffer significant pain and I accept that. You also have what appears to be uncontrollable diarrhoea on different occasions and I am fully aware that in the gaol scene, particularly if you are sharing a cell that would not make you too popular with the other prisoners.
50 On the other hand, I do note that you are at Ararat. Ararat Gaol unfortunately has had to become over the last few years a holding place for people such as you of your age with your type of offending and they are very well equipped to deal as best they can with the ill health that comes with ensuing old age.
51 The prospects of your rehabilitation are concerning. Whilst you have no insight it is hard to see how a rehabilitation can take place. You have continued to work. You are doing all those things. The risk of you reoffending I think will only deteriorate with age. You would be fully aware and this is not something I take into account, I assume you will do the whole sentence, that as things stand at the moment that if you do not basically admit to the offending and you still apparently maintain your denial, then you might have a lot of difficulty getting parole.
52 But in these circumstances I do have to set a new minimum term or a new non-parole period and I will do it in such a way that hopefully will give you some incentive at least to try and engage, in terms of the sexual predilections that you seem to have had, certainly going back into the 1980s. Whether that is going to be so or not is entirely a matter for you.
53 As I say, I have taken your health very much into account. In that respect also, I have indicated and again counsel's submissions were quite strong about this, that so far as level of seriousness is concerned, there was no violence, there were no threats and no subsequent threats it would appear and no subsequent, again it would appear, harassment.
54 Having, however, taken all those matters into account this sentence must be a one of significance and accordingly, I sentence you as follows.
55 You can stay sitting. That is okay. Charge 1, five years. Charge 2, five years. I direct that three years of the charge imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1, thereby reversing the normal principle. I take the view that Charge 2 calls for significant cumulation as it is the same victim, occurred a week after the first one and you had ample time to reconsider your actions against this woman. That gives a total effective sentence on this individual of eight years.
56 I direct that four years of that eight years be served cumulatively upon any sentence that you are currently undergoing. I direct pursuant to s16, whatever it is, that a new minimum term be imposed. That minimum term would be for a period of four years and six months, commencing from this day.
57 So, that will effectively increase your minimum term by two years, your head sentence by four years, which will mean effectively and if I have got the arithmetic correct, you will now be doing 15 with a seven. But that is just so you understand - no, sorry, you will now be doing 12 years and four months with a seven - sorry, no, I had my head totally around the wrong way with that. I am just only doing that because counsel check the arithmetic, make sure I ‑ ‑ ‑
58 MR RICHTER: No. That sounds ‑ ‑ ‑
59 HIS HONOUR: That's what I have aimed at and that - make sure that is what I have achieved.
60 MR RICHTER: As Your Honour pleases.
61 HIS HONOUR: All right. Does that make sense to you, Mr Cordy?
62 MR CORDY: Yes, Your Honour.
63 HIS HONOUR: All right. So, there's no other orders I need to make. Do you want him to be held here for a minute or two or I can't actually - or yes, I have.
64 MR RICHTER: No. I'll go over.
65 HIS HONOUR: All right. You can remove him now. Thank you.
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