DPP v Hilt

until May 1992. The victim is this matter is Rupert Leeds[2]. He was born in 1966. Mr Leeds was a student at your school from Year 7 to Year 11 between 1978 and 1982. 4. You offended against him when he was aged between 11 and 14. You were then aged between 37 and 40. You were his teacher in metal work. You favoured him from the beginning. In February 1978, just a few weeks after Mr Leeds began your classes, you invited him to have lunch with you which he did and thereafter he continued to spend lunchtimes with you. 5. In March 1978, Mr Leeds who was confused about his sexuality wrote you a note which said, 'I think I'm gay.' Instead of talking to Mr Leeds and offering support, this cry for help seems to have triggered your offending behaviour. 6. I turn to incident 1 which grounds Charges 1 and 2. About a week after Mr Leeds gave you the note, after having had lunch together, you asked him to assist you develop some photographs in a dark room at the back of your metal work classroom. 7. You began to show him the process of developing photographs. After being in the dark room for approximately 15 minutes, you stood next to him and placed your hands on his body and began rubbing your hands up and down his body from his chest to his groin and around his buttocks. You then undid the clasp on his trousers and undid the zip. You then placed one hand inside his underwear and rubbed and massaged his penis and testicles for a few minutes and that is (Charge 1). 8. You then moved Mr Leeds to the door, and directed him to stand behind the door, and placed his hands onto the door to stop anyone coming in, and had him bent forwards facing the door. Once he stood as you told him, you pulled his trousers and underwear down to his ankles. Mr Leeds heard you spit before you placed one finger inside his anus. He was terrified and in shock and recalled feeling pain in his anus. You moved your finger around the inside of anus before moving your finger in and out of his anus. (Charge 2). 9. You then accompanied him to the toilet where you made him sit on the toilet until he defaecated. You continued to offend against the complainant in a similar manner on a regular basis between 1978 and 1981 and that is uncharged conduct. 10. You told him about a peephole in the door of the dark room window and frequently told him to look through the peephole to see if anyone was coming while he was being sexually abused by you. 11. Turning now to incident 2 which is the basis of Charge 3 on the indictment.

On an unknown date in the Year 7 school year between 1 March 1978 and 19 December 1978, Mr Leeds entered the dark room with you. 12. This occasion began as usual with Mr Leeds having to face the door as you pulled down his pants and underwear. However, on this occasion, you turned him around to face you. You then knelt down on the ground and inserted his penis inside your mouth and began sucking his penis. You sucked on his penis for approximately 10 minutes. (Charge 3). 13. You offended against him in a similar manner on a regular basis between

1978 and 1981. To what is called incident 3, grounding Charges 4 and 5.

Between 28 May 1979 and 20 December 1979, Mr Leeds was 13 and in

Year 8. On an unknown date on a weekend, you invited him to visit your house. 14. He caught the train and arrived at your house. Upon arriving at your house, he and you sat on swivel chairs in the loungeroom together and watched a movie. 15. After some time, you brought out your old film projector and played a gay pornographic movie on the projector. Mr Leeds and you watched the pornographic movie and drank cask red wine together. During the movie, you swivelled Mr Leeds' chair around to face you. You then knelt down in front of him and asked him to take his pants down. 16. He complied and pulled his pants and underwear down to his ankles and sat back down on the chair. You then masturbated his penis until his penis became erect. (Charge 4). You then inserted his penis inside your mouth and sucked on his penis for around 10 minutes. (Charge 5). 17. You then stopped performing oral sex with Mr Leeds and resumed masturbating him by rubbing his penis with your hand. You rubbed his penis for approximately 5 minutes before he ejaculated. 18. Turning finally to incident 4 which is the basis of Charges 6 and 7. On an unknown date between 28 May 1979 and 20 September 1979, Mr Leeds was again invited to attend your home. On this occasion, he arrived to find that you had moved a single mattress from one of the bedrooms and placed it on the floor of your loungeroom. 19. You undressed him and directed him to lay down on the mattress on his back.

You laid down next to him and began masturbating him by rubbing his penis with his hand. (Charge 6). You masturbated him for a few minutes before moving your head down to his groin area and inserted his penis inside your mouth. (Charge 7). 20. You then sucked on his penis for approximately 20 minutes. Mr Leeds attended at your house on several other occasions in 1979 and 1980. On one occasion in 1981, he refused to remove his clothing and left. 21. Through 1982 he avoided you and refused to have any further meetings or interactions with you. From the first incident in 1978 up until 1982, you wrote Mr Leeds a series of love letters which described how you felt about him and included statements such as, 'I miss you. I care about you' and 'when are you coming to see me again?' 22. He kept these letters for some time before reporting the matter to the police in Prahran on 10 March 1993 and providing these letters to police. You were initially interviewed by police on 12 July 1993. However, the police took no action. Mr Leeds recontacted police in February 2019 and a new investigation was commenced and he provided a new statement to Cairns Police on 3 July 2019. 23. You were arrested on 12 November 2020 and interviewed in relation to the incidents described in these remarks. You gave a no comment record of interview. Mr Leeds has made a victim impact statement which he read out to the court at your plea hearing. Mr Leeds says before you sexually abused him, he was a shy 11-year-old who had hopes to become a police officer or a solicitor. 24. He confided in you and you exploited and abused him. He was terrified and attempted suicide for the first time at 13 when he overdosed on paracetamol. He only managed to complete Year 11 and so his hopes of becoming a police officer or a solicitor were dashed. 25. Mr Leeds says he has struggled with depression and anxiety and post-traumatic stress disorder over the years and has been unable to hold down jobs. He says he left Victoria for Cairns in around 2010 and this move improved his mental health. 26. He says he has struggled to have fulfilling sexual relationships and has been a functioning alcoholic for 35 years. Mr Leeds says he was able after many attempts to quit drinking in 2019. It was at this time he was able to reagitate his allegations and go to the police again. 27. I hope, Mr Hilt, that you listened and absorbed Mr Leeds' words and have at least some appreciation of how your actions completely altered the course of his life and have caused him such long term and profound effects. 28. Your offending was a gross breach of trust. Your duty was to educate and nurture your students and not to exploit them and to corrupt them. Mr Leeds was a vulnerable young boy who confided in you. You took advantage of his vulnerability and confusion. You sexually abused him over a protracted period of time. I regard your conduct as predatory. 29. Four of the seven charges to which you have pleaded guilty are penetrative charges, charged as indecent assault in accordance with the law as it then was. The charge of anal penetration has caused Mr Leeds feelings of shame and humiliation which have endured. 30. These are not course of conduct charges but they are charges that occurred in the context of regular abuse and so it cannot be said that these were sporadic or isolated or infrequent incidents. 31. You are not to be sentenced for your uncharged conduct. However, the context of your offending is relevant to the assessment of your moral culpability and to my assessment of the effects of your offending on Mr Leeds. 32. Incident 3 occurred in the context of you showing the then 13-year-old

Mr Leeds pornography and giving him wine to drink. Your offending is very serious and your moral culpability is high. 33. I turn now to the matters in mitigation that were raised at your plea. 34. First, you have pleaded guilty. You pleaded guilty at the committal before

Mr Leeds gave any evidence. Yours is therefore a plea at the earliest opportunity. It has significant mitigatory effect in the context of the still ongoing delays to the administration of criminal justice in this state occasioned by the COVID-19 pandemic. 35. I sentence you therefore in accordance with the principles set out in the

Court of Appeal case of Worboyes_[3]__._ Your plea has facilitated the course of justice and spared the community and the victim the cost and trauma of a trial. 36. By virtue of your plea, you have accepted criminal responsibility for your actions. There was no submission made that you are remorseful and indeed there was no material presented to me containing any expressions of real or insightful remorse on your part. 37. You were born in October 1941 and you are presently 81 years old. You live in a nursing home in Northcote and you have done so since 2013. You have no family and rely on the support of a single friend. 38. You suffer a number of physical ailments including arthritis, diabetes, blood pressure and lymphoma. You walk using a walking frame. You gave up teaching in the late 1980s and have not worked since then. 39. You have survived financially on some accrued employment entitlements and an inheritance from your parents. At an earlier stage in these proceedings, your lawyers explored whether you were fit to plead. A psychiatric report was prepared by Dr Leon Turnbull dated 11 August 2021. 40. Dr Turnbull found you to have a long-standing established diagnosis of depression and anxiety. You received medication but were not receiving psychological or psychiatric services. 41. On the medical material Dr Turnbull obtained, he learned that you had been psychiatrically hospitalised in 2013 at the Albert Road Clinic. After this admission, you went into a nursing home and have never attempted to live independently since. 42. Dr Turnbull gives the opinion that you feel safer in an institutional setting. Your admission file from 2013 from the Albert Road Clinic was obtained by defence and tendered at your plea. It states your presenting problem was two months of anxiety since police charges alleging sexual assault dating back 30 years. 43. This brings me to the topic of delay which is an important one in sentencing you. Mr Leeds went to the police in 1993 and you were interviewed. There is no information about why you were not prosecuted. 44. In 1993, Mr Leeds took successful civil action against you and received a sum of money as compensation. This may have been the reason criminal charges did not proceed but this remains speculation only. 45. In 1998, you were sentenced in the Magistrates' Court to a wholly suspended sentence for sexual offending against other boys. Again, it is unknown why Mr Leeds' complaint was not reagitated by police and joined with the charges involving other victims. 46. As discussed, the notes from the Albert Road Clinic in 2013 disclose at that time the spectre of prosecution was affecting your mental health and had been for around two months before your admission in March 2013. 47. I am unclear what happened at this time, but something clearly occurred around this time to trigger your anxiety and the mental decline. Mr Leeds went to police again in 2019 and again this matter has been beset by delay. This time the delay is readily explicable. This matter was caught in the delays occasioned by the COVID-19 pandemic. The consequence being, you fall to be sentenced around three and half to four years after Mr Leeds' 2019 complaint. 1. Delay is a significant matter in sentencing you in a number of ways. First, it is

40 years since you committed the charges, and 30 years now since Mr Leeds' initial 1993 complaint and you have not re-offended. Your rehabilitation is therefore demonstrated. 2. Secondly, you have been aware there were unresolved criminal matters hanging over your head, potentially as far back as 1993, and certainly by 2013 this was a cause of considerable stress to you, requiring your admission into a psychiatric facility. 3. You have never sought to evade prosecution. You have never changed your name. You have always lived at an address readily obtainable by police. You became aware of the revival of the prosecution on 19 December 2019 and as has been stated, there has been another further period of not insignificant delay. 4. Ms Connelly, on your behalf, submitted delay has occasioned unfairness in your case. She submitted there is a serious incongruity between the assertion that your offending is serious and calls for the application of general deterrence, and the failure to pursue prosecution in 1993, 1998 and 2013. 5. Ms Connelly submitted a further consideration is that if you had been prosecuted for this offending in 1998, you would not have been subjected to the Serious Sexual Offender provisions. 6. Ms Guesdon for the prosecution submitted that your offending was very grave and that it is not uncommon in cases involving childhood sexual abuse for there to be delay, and delay must not be overweighted as a factor. She accepted there were Verdins[4] considerations in sentencing you and she accepted that your age and health difficulties would make prison a difficult place, but she submitted on behalf of the prosecution that the only appropriate sentence was a term of imprisonment involving an immediate custodial sentence. 7. I turn now to the application of legal principles. 8. First, I must sentence you applying the maximum penalty for the offence of indecent assault of a male person, as it was in 1978-1982, and that was a

five-year maximum penalty. 9. In considering the gravity of your offending, I can, however, look to current community attitudes and standards and it goes without saying that since 1982 and indeed since 1993, the community better understands the devastating effects of childhood sexual abuse and the morally reprehensible conduct that sexual abuse and exploitation of children and young people involves. General deterrence and denunciation are the primary sentencing considerations. 10. In your case, I accept that your age and ill health would make prison a very difficult place for you. I also accept that on the basis of the medical material tendered, there is some application of Verdins limbs 5 and 6 in your case; that is, you would find prison more difficult than a prisoner in robust mental health and prison may well lead to a worsening of your mental health. 11. You have not offended in 40 years. You are most unlikely to do so in the future.

I do not consider that the principles of specific deterrence and community protection are engaged in sentencing you. I accept the submissions made by your counsel about the relevance of delay in sentencing you. Why you now fall to be sentenced by me in 2023 when Mr Leeds went to police in 1993, remains largely unexplained. 12. It must be immensely frustrating and upsetting for Mr Leeds that it has taken so long for you to admit in a criminal court the terrible things you did to him when he was a young man. However, as has been discussed, as a matter of law, the consequences of delay act in mitigation of your sentence. 13. Both counsel referred me to the sentencing statistics and comparative cases, including the recent Court of Appeal case of Henry[5] where the Court unanimously upheld the sentence of a trial judge who imposed a wholly suspended sentence of imprisonment for similar offending, after trial. 14. I was also referred to a number of other cases involving elderly offenders, considerable delay and charges involving the serious abuse of children, where sentences involving periods of actual custody were imposed. These sentences have been of some assistance in sentencing you, but ultimately you fall to be sentenced on the facts and circumstances specific to you. 15. Taking into account all of the matters I'm required to under the Sentencing Act and matters personal to you, I intend to sentence you as follows. 16. You are convicted on all charges, and will be sentenced to terms of imprisonment on all charges. You therefore fall to be sentenced as a serious sexual offender on all charges, and the Court is therefore required to consider protection of the community as the principal purpose for which sentence is imposed. 17. Although the prosecution do not seek a disproportionate sentence, the Court must also impose cumulative sentences unless otherwise ordered. The principle of totality is not displaced by the application of the serious sexual offender provisions. I intend to sentence you as follows. You can remain seated Mr Hilt, given the circumstances in which I am sentencing you and given your mobility issues. 18. On Charge 1, you are sentenced to a term of imprisonment of three months. 19. On Charge 2, you are sentenced to a term of imprisonment of 20 months. 20. On Charge 3, you are sentenced to a term of imprisonment of 18 months. 21. On Charge 4, you are sentenced to a term of imprisonment of six months. 22. On Charge 5, you are sentenced to a term of imprisonment of 18 months. 23. On Charge 6, you are sentenced to a term of imprisonment of six months. 24. On Charge 7, you are sentenced to a term of imprisonment of 18 months. 25. Charge 2 is the base charge. I order four months of the sentences on

Charges 3, 5 and 7 to be served cumulatively upon Charge 2 and upon each other. That makes a total effective sentence of 32 months or two years and eight months' imprisonment. You are sentenced as a serious sexual offender on

all charges and I direct that your status as a serious sexual offender be noted in the Court records. 26. Being a sentence of less than three years, I can wholly or partially suspend it. This has been the most difficult aspect of this sentencing exercise. Your offending was grave and I am mindful that delay and prosecutorial inaction, for whatever reason, have in all likelihood deprived Mr Leeds of the sense of closure and justice to which he is entitled. 27. The authorities are also clear that delay, although an important matter in mitigation, especially when there is delay, as is the case here in the magnitude of 40 years since you offended and 30 years since you were first interviewed, nevertheless should not be given undue weight in cases involving serious sexual offending. 28. Here, however, I have evidence of a failure to proceed against you going back

to 1993 and the debilitating effects of which are contained in your admission into a psychiatric facility in 2013. 29. Further, it appears to me that since 2013, you have effectively withdrawn from life, choosing to reside since this time in an aged-care facility. You are clearly a vulnerable and isolated individual without family and friends, who it seems to me has led an empty and unfulfilling life since you left work in the late 1980s. 30. Even having taken all of this into consideration, still I would have come to the conclusion that a period of actual custody was required to adequately punish you for your offending. However, what has ultimately tipped the balance in favour of a wholly suspended sentence in your case is the further period of not insignificant delay that has occurred since 2019; a further delay of around three and a half years. 31. I have therefore concluded, taking into account all the matters to which I was taken and referred to in these remarks, that I will wholly suspend your sentence for a period of two years and eight months. Had you pleaded not guilty, I would have sentenced you to a sentence of four years with a non-parole period of 18 months. There has been no pre-sentence detention served in this matter.

[3] Worboyes v The Queen [2021] VSCA 169

[4] R v Verdins & Ors [2007] VSCA 102 ("Verdins")

[5] Henry v The Queen; DPP v Henry [2023] VSCA 100