DPP v Hutchinson [2025] VCC 1712

1. Stella has provided a statement in which she outlines the impact of your offending and how it has affected her life. She states, 'over the past three years, I have felt a mix of emotions. I have become more self conscious and I am scared to go out alone without someone with me.' She refers to being 'completely crushed' after the incident; and of it impacting countless friendships and relationships with her family and partner. Your offending has undermined her sense of trust, security, confidence and mental health. It has affected her 'daily life in countless ways' and she refers to her struggles with sleeping and food. A testament no doubt to her own strength and resilience, she also states -

"Now, I am doing better ... I have found myself again and I no longer suffer with my mental health as bad ... there are times when I feel like someone is standing over and watching me, but I know my house is safe ... I am able to talk about the incident without crying as much ... I have finally found my passion for school again. This incident has become a major thing in my life and it is something I will carry with me for the rest of it.."

1. I take into account in sentencing you the significant impact of your offending.

1. Sexual offending against children is inherently serious, as evidenced by the maximum sentence of 10 years' imprisonment and the standard sentence of 4 years imprisonment. Such offending is abhorrent, it can have lifelong effects and the community expects it to be firmly denounced. General and specific deterrence, community protection and denunciation are the primary sentencing purposes for such offending. There is also a presumption of harm to children who are victims of sexual offending and in this case Stella has outlined the harm that your offending has caused her.
2. The prosecution submit that the objective gravity of your offending can be categorised as 'medium-level seriousness' having regard to a range of matters including the breach of trust and the advantage taken of Stella's intoxicated state. They describe the offending as protracted, insofar as it occurred across three incidents throughout the evening and as opportunistic.
3. Your Counsel properly acknowledged that your offending is inherently serious and that general deterrence and denunciation are important considerations. Your Counsel however submits that while serious your offending falls at the lower end of seriousness, as compared to the wide variety of behaviour that is encompassed in this charge. Given the factual circumstances, I accept that charge 1 falls at the lower end and is comparatively less grave than the other offending. In respect of the remaining charges, I accept that there are more serious examples of offending of this kind, accompanied by other offending or involving physical injury or offending of a more protracted nature or more calculated and facilitated by a period of grooming. However, I do not accept that this further and escalating offending sits at the lower end, given the nature of the sexual touching and that it involved you, twice, approaching Stella while she was in her room, and setting upon her as she outlined in her evidence.
4. Any assessment of the gravity of your offending must also take into account the significant breach of trust involved. On your own account you had been a trusted adult for Stella, the father of her friend. She had lived previously in your home and she was staying overnight at the time of the offending, and in the circumstances you were entrusted with her care. As already noted, there was also a significant age disparity between you. She was particularly vulnerable as she was alone in your home and, I accept, she was obviously affected by alcohol - circumstances which you opportunistically exploited.
5. To the extent that your Counsel suggests that your offending appears to have occurred in the context of intoxication and extraordinarily poor judgment, while this may be correct and provide some context I do not consider it to be mitigatory. Overall, I assess your moral culpability as high.

1. The procedural history of your case is important. I refer also to the chronology outlined in the prosecution's submissions of 10 November 2025. You were interviewed on 27 July 2023 and charged following interview. A summary jurisdiction application was heard on 27 November 2023 at the Melbourne Magistrates' Court which was ultimately refused. A trial proceeded between 10-19 September 2024. On 19 September 2024 the jury were discharged in circumstances where, upon retiring to consider their verdicts, it was discovered that the jury had been provided with incorrect versions of the VARE transcript. On 25 August 2025 your trial proceeded for a second time and after several days, the jury returned verdicts of guilty on 1 September 2025.
2. Your Counsel relies on the delay in your case, submitting that it enlivens both the unfairness and rehabilitation limb, as outlined in the relevant authorities. The prosecution did not accept that there has been sufficient evidence of rehabilitation within this interim period. In all the circumstances, I accept that delay is an important factor in your case. On the evidence before the Court, which I will return to in a moment, in reaction to the prosecution of these charges you have developed symptoms sufficiently intense to meet the criteria for an adjustment disorder with mixed disturbance of emotions and conduct. The delay, coupled with proceeding through two separate trials, I am satisfied is likely to have caused you considerable anxiety and stress. I also accept that, notwithstanding there is no acknowledgment of your offending, you have not reoffended over a substantial period of time and have otherwise been a working and contributing member of the community, which I consider evidence's some ongoing rehabilitation which I give some weight to.
3. Your matter did proceed to trial and while you were well within your rights to run a trial, and to contest the charges, and you are not to be punished for this, in doing so you have lost any entitlement you may otherwise have had to the mitigatory benefit you might have received had you entered a plea of guilty.

1. Your personal circumstances were outlined by your Counsel and in the report of clinical and forensic psychologist, Patrick Newton.
2. You are now 43 years of age. You identify as indigenous. Your father is from the Palawa tribe in Tasmania and your mother grew up in Tasmania but was from the Stolen Generation and does not know where her family were from. You only have, what your Counsel referred to, as a 'superficial connection to culture' as it has been in part lost with time and the circumstances of your parent's upbringing.
3. You are the second of six children, having three brothers and two sisters, one of whom died in infancy. You grew up in the western suburbs in Victoria and your father was a tow-truck driver/operator and your mother was engaged in home duties. You describe your childhood and background as a relatively unremarkable one. You left home at the age of 15 to live with friends. Your parents divorced when you were in your early thirties. You endured a period of estrangement from your family for several years but have since reconciled and you report now being on good terms with your parents and your siblings. Currently you are living in a caravan at the home of one of your brothers.
4. In terms of your education, you left school in Year 9 and indicate that you managed to get by but struggled academically. You also experienced a range of significant behavioural and disciplinary problems throughout your high-school years. After leaving school you did not undertake any further formal education. You have worked primarily in the fields of tyre fitting and earth moving, including working with large machinery 'in the mines'. Between the ages of 30-35 you worked in the mines with heavy machinery in Western Australia.
5. You have been employed in your current role as an earthmover tyre and wheel specialist for more than six years with BP Tyres. You spoke to Mr Newton about the joy that your work brings you. Your employer is aware of your charges and in fact gave evidence at your trial. I accept that you are clearly a valued and trusted employee.
6. You have had several significant relationships in the past, which appear to have frequently broken down in the context of suspected infidelities. A relationship from when you were 18 bore a son who is now 22 years of age. While you had some previous contact with him you have not had any contact now for over a decade.
7. You had a further relationship with a woman you married when you were 30 years of age and there are two children to the relationship, your son and daughter. After the relationship ended you had shared custody of your two children up until you were charged. After being charged, an intervention order initially prohibited you from having contact with your daughter. You regularly see your son but now you are only able to occasionally see your daughter. You told Mr Newton that your daughter has developed significant mental health problems and is unstable, which I note is consistent with what you said in your record of interview. I note that it was this daughter who had been a good friend of Stella's. While you have maintained contact with your daughter you are wary of exacerbating her mental health difficulties in light of the charges and so you have kept her at arm's length.
8. You had a further relationship for several years in which you reportedly played a parental role to your partners child from a previous relationship. Your last relationship was between December 2024 and March 2025 and ended in the context of your legal problems. You are currently single.
9. You commenced drinking at about the age of 23 and acknowledge a history of sustained heavy drinking as an adult. You report markedly decreasing your drinking since the trial.
10. You have a criminal history, between 2001 to 2003. You have not previously served any custodial terms and you have no history for sexual offending. Your prior criminal history has little, if any, relevance to the current sentencing task. You have no subsequent matters.
11. You reported to Mr Newton a strong family history of mental health problems, noting that your father had PTSD in connection with road trauma and that two of your siblings, as well as your daughter, have experienced chronic mental health difficulties. You reported a limited engagement with mental health services, as canvassed by Mr Newton in his report (see [28] and [29]). You have also continued to experience some suicidal ideation throughout these legal proceedings. You have not sought any professional assistance to date.
12. Mr Newton found it difficult to engage you in the assessment process (at [10]) though you willingly completed the psychological testing requested of you (at [11]). As a result of the various assessments undertaken, Mr Newton offers the following opinions:

(a) At the time of assessment your mental state was characterised by moderate distress and dysfunction.

(b) While you deny any specific plans regarding how you might harm yourself and express a desire to live, you are an elevated risk for acts of self-harm.

(c) Your symptoms cause you moderate level of distress and are reactive in nature, having developed in reaction to the prosecution and now intensified by reason of the verdict. Your symptoms are sufficiently intense to meet the DSM-5-TR criteria for an adjustment disorder with mixed disturbance of emotions and conduct.

(d) You are at increased risk for deterioration in your mental state following your placement in a custodial environment. Further, he states at paragraph [69]:

"As noted in [44], there is a genuine risk that Mr Hutchinson's emotional and behavioural difficulties will intensify in a custodial environment due to the limitations in access to support and the increase in stress to which he would be subject. Beyond the ordinary factors of relevance, this would be increased by his status as a first-time prisoner and his naivety to the prison environment, and the issues associated with the nature of his offending including not only the limitations which this will impose upon his circumstances but also the opprobrium he will likely face from other prisoners. Each of these factors is likely to intensify the stress Mr Hutchinson experiences while simultaneously compromising his opportunities for support; accordingly, they are likely to result in an experience of incarceration that is somewhat more onerous than that of a typical prisoner undergoing sentence."

(e) It was beyond the scope of the assessment to undertake a comprehensive assessment of your intelligence but you impressed him as an unsophisticated man, who's likely suffered a learning disability which hampered your ability to engage with studies effectively.

1. Your Counsel relies upon limbs 4 to 6 of Verdins[2]. The prosecution concede limb 5 as having application but do not accept limb 6 on the basis that there is insufficient evidence to conclude that imprisonment would have a significant adverse impact on your mental health as required to enliven the limb. On the evidence, I agree that limb 5 has application but that there is not adequate support for the engagement of limb 6.
2. For completeness, you are currently treated for epilepsy, which was diagnosed in childhood, and you have also reported suffering from a hip condition.

1. Turning to your prospects of rehabilitation, your Counsel invites the Court to assess your prospects as positive. She submits that the offending is standalone and 'very much an aberration for an otherwise hardworking employee and a person raising two children.' The prosecution accept that you have protective factors in place and no subsequent criminal convictions.
2. In my assessment, I take into account your long work history and, up until recently, your stable housing and circumstances. You have ongoing contact with your children and are motivated to continue to support them. You have ongoing and close family relationships. Your younger brother attended Court during both trials. As already noted, you currently live at the residence of your older brother.
3. In his letter to the Court, your brother Graham refers to you as 'responsible, patient and considerate' and as actively involved in the speedway community, where you volunteer and assist with various events. You have also helped him regularly with his children. Your other brother, Timothy speaks of the support you have given him over the years and refers to you as going 'above and beyond' to help others. Kylie Milne has known you for the past 22 years and also speaks further of the trust she holds in you. Stacey Head also refers to your volunteer contributions and the considerable assistance that you give to both of your parents.
4. Your continual denial of offending is problematic from a rehabilitative perspective as it may pose a barrier to participation in custodial sex offender treatment programs. Mr Newton is guarded in his assessment of your rehabilitative prospects, given your denials, interpersonal problems and limited motivation for treatment. He conducted an evaluation of your risk for sexual re-offending. Using the Static-99R tool you were placed in the low-moderate or average risk range. Testing on the RSVP-2 instrument suggested the results of the Static-99R had underestimated the level of risk and that 'when taking into account the full spectrum of information provided by the RSVP-2 ... [you] would be most accurately classified as presenting a moderate risk of recidivism to further sexual offending.'
5. I have taken all of these matters into account. I consider that you may benefit and develop further insight through treatment but overall, noting the caution I have just referred to, I regard your future prospects as favourable.

1. The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community.
2. I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991, where relevant in your case. I have also considered other relevant (standard sentencing) cases as a guide to the sentencing landscape, including the cases referred to by the prosecution in its comparable table and the statistics. Of course, each case turns on a consideration of its own facts and circumstances and statistics have their limitations.
3. The prosecution submit that the only just and appropriate sentence in your case is a term of imprisonment, structured with a non-parole period. Your Counsel submits that a corrections order is appropriate or otherwise a combination sentence. She submits at [50]:

"The sentencing considerations of deterrence, community protection, punishment and rehabilitation could be dealt with by way of an extensive community corrections order with conditions to undertake community work and treatment, as considered in the guideline judgment of Boulton[3]. A community corrections order can be punitive in nature, extremely intensive and available for serious matters of this kind, even where someone has not entered a plea of guilty. Such an order can include conditions which are described as 'variously coercive, restrictive and/or prohibitive, and the obligations and limitations which they impose will bind the offender for the entire duration of the order (subject to any contrary order)[4]."

1. For completeness, I had you assessed for a community corrections order and you were assessed as suitable.
2. As a broad proposition I accept that a community corrections order is capable of being highly punitive. However, given the nature and gravity of the offending and the prominence of public denunciation, general deterrence and community protection, I do not consider it to be an appropriate sentence in your case. After a careful consideration of all the material, I consider that the only just and appropriate sentence is one of imprisonment, with a total effective sentence and a non-parole period.
3. I have taken into account the principles of proportionality, parsimony and totality. With respect to totality, the offending effectively occurs over the course of a day (entering into the early hours of 18 January 2023). Of the 4 charges, 3 of them occur during the one evening and charges 3 and 4 are part of the one episode. While each charge represents separate criminality which must be reflected in the sentence imposed, I consider that a substantial degree of concurrency is warranted in the circumstances. I note the prosecution concession that 'a large degree of concurrency is appropriate' (at [4], submissions 10 November 2025).
4. As I propose to sentence you to terms of imprisonment on charges 1 and 2, you fall to be sentenced as a serious sexual offender on the remaining charges on the indictment, that is charges 3 and 4. By reason of this status, in sentencing you on these charges I must regard the protection of the community from you as the principal purpose for which that sentence is imposed. I do not consider that there is a need to impose a disproportionate sentence to achieve community protection and the prosecution does not seek one.
5. Returning to the principle of totality, in respect of charges 3 and 4 I proceed on the basis that s.6E must, to a degree, give way to totality[5] . However, it remains an important consideration. Dealing specifically with charge 4, while some cumulation is necessary, I do not regard the offending as involving a high degree of separate individual criminality to that encompassed by charge 3. While of course it represents separate conduct and touching, it temporally forms part of a single uninterrupted incident and is of a broadly similar quality, though I regard charge 3 as the more sustained and serious charge. Also, I must ensure that the total effective sentence remains a just and proportionate one.
6. It was not disputed between the parties that the standard sentencing regime applies, and as already noted, the standard sentence is 4 years imprisonment. In brief, the standard sentence is to be taken into account as one of the factors relevant to sentencing. It has the same function as the maximum penalty, does not affect the established 'instinctive synthesis' approach to sentencing; does not require or permit 'two-stage sentencing' or otherwise effect matters which the court may, or must taken into account in sentencing[6].
7. The sentences I am about to impose are lower than the standard sentence. I have considered all relevant factors in assessing each individual sentence, including the standard sentence, the objective seriousness of the offending and the matters available to you in mitigation, including your lack of relevant prior history, the delay, your mental health and your prospects of rehabilitation and I have determined that the following sentences are appropriate. Before I pronounce sentence, I might also just add that in my assessment of your rehabilitative prospects, I have obviously taken into account that you have no relevant prior criminal history.

1. Synthesising all relevant factors, you are convicted and sentenced as follows -
2. On Charge 1, nine months' imprisonment;
3. Charge 2, two years and two months' imprisonment;
4. Charge 3, two years and nine months' imprisonment;
5. Charge 4, two years and five months' imprisonment.
6. Orders for cumulation as follows. Charge 3 is the base sentence. Charge 1, 1 month. Charge 2, 3 months. Charge 4, 3 months. This totals 3 years and 4 months imprisonment. I consider that justice requires you serve a term of 2 years imprisonment before being eligible for parole, and I note in reference to that period, the application of s11A(4)(c) which is a 60 per cent marker effectively, I know that one can go below, but I consider that that is the appropriate term.
7. Sexual assault of a child under 16 is a Class 2 offence under Schedule 2 of the Sex Offender Registration Act 2004. The mandatory minimum reporting period, as agreed between Counsel, is 8 years.
8. HER HONOUR: You can take a seat, Mr Hutchinson. I am going to note custody management issues as follows and I will hear from counsel if there are any further. Mr Hutchinson is Indigenous, it is his first time in custody, he suffers from an adjustment disorder with mixed disturbance of emotions and conduct. He also suffers from epilepsy for which he is medicated and he has hip problems though, Ms Wendlandt, it was raised in the Corrections report, I do not know if there is anything further I need to know. Is he medicated for the hip problems. Are you medicated?
9. MS WENDLANDT: No.
10. OFFENDER: No, I'm not, Your Honour. I've been seeking physio and a chiropractor.
11. HER HONOUR: All right. I will have it noted on the custody management issues factors.
12. OFFENDER: Thank you.
13. HER HONOUR: Now, I think we have the Sex Offenders Registration Act 2004 forms ready for Mr Hutchinson to sign. Ms Wendlandt, you can approach him if you like because they do need to be signed, please. Thank you.
14. This document, in brief terms, Mr Hutchinson, you are going to be subject to that Registry for a period of eight years. It imposes a number of strenuous requirements including annual reviews, obligations on your which are canvassed in that document. You are now signing really to confirm receipt of that document.
15. OFFENDER: Yep.
16. HER HONOUR: Thank you. I also, pursuant to s6F of the Sentencing Act direct that on Charges 3 and 4, Mr Hutchinson's status as a serious offender be noted on the court's record. Now counsel, was there anything further?
17. MR WILSON: No, Your Honour.
18. MS WENDLANDT: No, Your Honour.
19. HER HONOUR: All right counsel, thank you. We will adjourn the court.

[2] R v Verdins [2007] VSCA 102.

[3] Boulton v The Queen [2014] VSCA 342.

[5] DPP v Dillon (a pseudonym) [2025] VSCA 266.

[6] Brown v The Queen [2019] VSCA 286.