Regina v Hilton

Court of Criminal Appeal (NSW)|2005-03-14|Before: Adams J, Bell J, Hall J, Mr J

Regina v Hilton [2005] NSWCCA 317 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT OF: Adams J at 1; Bell J at 34; Hall J at 35

DECISION: Appeal in respect of the s 91E offences allowed. Substitute fixed term of two months imprisonment on each offence to date from 22 November 2005 and expire on 21 January 2006

CATCHWORDS: Sentence appeal - offences under s91E and s91F Crimes Act 1900 - multiple offences - common factual elements - same effective sentence for both series of offences - double punishment - appeal upheld

Crimes Act 1900 LEGISLATION CITED: Mental Health Act 1990 Crimes (Sentencing Procedure) Act 1999

Pearce v The Queen (1998) 194 CLR 610 CASES CITED: R v Allpass (1984) 72 A Crim R 561

Regina - Respondent PARTIES: Neville Francis HILTON - Appellant

Crown / Respondent - Ms G Girdham COUNSEL: Appellant - Mr J Doris

Mr S Kavanagh - Solicitor for Public Prosecutions SOLICITORS: Leo and Morrison - Solicitors - Applicant

IN THE COURT OF CRIMINAL APPEAL 2005/90 ADAMS J BELL J HALL J

7 September 2005 REGINA v Neville Francis HILTON Judgment

ADAMS J: Introduction 1 The applicant Neville Francis Hilton was convicted by a jury on 1 September 2004 of eleven counts of receiving money knowing it was derived from an act of child prostitution (the s91E offences) and eight counts of having control over premises in which acts of child prostitution took place (the s91F offences). The first group of convictions comprised offences under s 91E of the Crimes Act 1900 carrying a maximum penalty of ten years imprisonment and the second group were offences under s 91F of the Act, carrying a maximum penalty of seven years imprisonment. In respect of the s91F offences, the applicant was sentenced to concurrent terms of imprisonment for two years to commence on 22 November 2004 and expire on 21 November 2006 with a non parole period of twelve months to expire on 21 November 2005. In respect of the s91E offences, the applicant was sentenced to concurrent terms of imprisonment for three years to commence on 22 November 2005 and expire on 21 November 2008 with a non parole period of twelve months to expire on 21 November 2006. The overall effect of the Court's orders was that the applicant was sentenced to a term of four years from 22 November 2004 and was eligible to be released on parole after serving two years. The applicant seeks leave to appeal in respect of each of the sentences of and non parole periods and the orders for partial accumulation.

The facts 2 For the purposes of this appeal, the facts are not controversial. All offences were committed between 11 and 21 August 2003. They arose out of the ownership by the applicant of a building in Port Kembla in which a brothel was operating. He purchased it about two years previously as an investment, the brothel providing a source of income which was a significant part of the applicant's investment strategy. It became apparent to the applicant that the management of the brothel was adversely affecting the rental income he derived from his investment and, in partnership with two others, he agreed to participate in the management, to the point where he was effectively attending almost daily and either keeping or checking the books of account. He then took cash in payment of the rent. 3 It was at this time over the period of about a month that the only prostitutes providing services to clients of the brothel were two girls respectively aged thirteen and fourteen years. The learned sentencing judge noted that the evidence at trial established that the applicant met both of these girls on a number of occasions including at least one when he gave both of them a lift in his car, purchasing alcohol for them at a hotel on the way. One of the girls had braces on her teeth. The jury's verdict involved the rejection of the applicant's defence that he was unaware that the girls were both under the age of eighteen years. Whether he knew that they were as young as they were may be doubted, but this does not matter. The learned sentencing judge observed that their general demeanour in the course of evidence indicated a degree of immaturity which must have been apparent to anyone coming into contact with them. 4 The applicant was aware from the records which he checked from time to time what each girl was doing at the brothel and, it follows, the contribution each was making to his income. Although the applicant did not control the entry of persons into the premises or their movements whilst there, he was undoubtedly concerned in the brothel's management in the sense that I have mentioned. The learned sentencing judge held that the applicant played no part in recruiting the girls to work as prostitutes, nor in regulating their working hours. The learned sentencing judge made the following additional (and apt) findings - "[The girls] were both emotionally disturbed, vulnerable teenagers who had already come under the notice of the Department of Community Services. There was evidence before the court at trial which suggested that the Department of Community Services was less than diligent in attempting to meet their accommodation needs, given that both girls had rejected their families. The brothel provided the girls with accommodation and a source of income. They were both there willingly. Be that as it may, an offender's culpability cannot in my view be assessed for the purposes of these offences relative to the perceived morality of the children. One would expect such children, particularly girls of thirteen or fourteen years of age, to be exhibiting disturbed behaviour and to be alienated from their families if they were brought to the point where prostitution appeared to them a viable alternative to school and family life. The legislation is designed, in part, to meet that very prospect, that is, it is intended to punish those who would profit from or be involved in acts of child prostitution, in recognition of the fact that children at risk are vulnerable to sexual exploitation." 5 The learned sentencing judge also (rightly) made the point that the applicant's position was quite different from other offenders who forced or coerced children into prostitution by direct threats or forcible detention. It may be worth adding that, nonetheless, the applicant, for financial gain, was exploiting or taking advantage of the children's situation. Her Honour went on to say - "That sort of criminality stands at one of the scale, whereas the offender's criminality falls well below that towards the bottom end of the scale. At the end of the day, however, the offender played an active role in management of premises used for acts of child prostitution and he directly received financial benefit, albeit not great, from those acts of child prostitution. The maximum penalties prescribed by the legislature signal the objective gravity of the offences. The offences under s 91E are regarded more seriously and warrant, in my view, some partial accumulation on sentences that might be imposed for the offences under s 91F because they represent a discrete form of criminality. There is, however, a substantial overlap in the criminality exhibited by each set of offences. All the offences occurred over the same period of time in respect of the same two girls."

The problem of double punishment 6 The applicant particularly relies on the last paragraph quoted above, submitting that, as the non parole periods were completely accumulated, the learned sentencing judge did not carry through to the result her finding that there was a substantial overlap in the offences. I do not accept that her Honour overlooked this finding. However, the question remains whether the undoubtedly substantial overlap in the offences justified any accumulation at all. Mr Doris of counsel for the applicant submits that, if custodial sentences were justified, they should have been entirely concurrent since, in the circumstances here, to do otherwise was to inflict double punishment on the applicant. 7 It is clear from the brief description of the applicant's offences that his receipt of the money taken by the brothel was in payment or part payment of the rent he was owed as owner of the property. Section 91E provides - 91E Obtaining benefit from child prostitution

(1) Any person who receives money or any other material benefit knowing that it is derived directly or indirectly from an act of child prostitution is liable to imprisonment for 10 years.

(2) A person is not guilty of an offence under this section if the person satisfies the court that the money or other material benefit concerned: (a) was received by the person for the lawful provision of goods or services, or (b) was paid or provided in accordance with a judgment or an order of a court or a legislative requirement, whether or not under New South Wales law. 8 Payment of rent by, for example, a brothel owner in circumstances where the landlord is aware that the rent is derived wholly or in part from acts of child prostitution would, to my mind, constitute an offence under 91E. The exclusion provided by 91E(2)(a) does not cover permission (in whatever form) to use or occupy premises. Even if it did, s 91F would make the provision of such premises unlawful. It follows that there was no need, as the Crown particularised its case, to charge the applicant with offences under 91F as well as the offences under s 91E. The fact that the applicant received money by virtue of his control of the premises does not seem to me to add further criminality to the offences which he committed under s 91E. It simply describes the way in which the applicant received the money and explains how he was in a position to do so. I am therefore of the view that the offences under 91F, in point of criminality, were almost entirely subsumed in the offences committed under s 91E. I say "almost entirely" since the element of his ownership of the premises which he was obliged to use to prevent any part of them being used for child prostitution of which he was aware (or suffer punishment as provided by s91F) was a feature of his criminality additional to his limited involvement in the management of the brothel and the taking of the proceeds of the prostitutes' work. 9 One of the obvious purposes of the legislation is to discourage child prostitution, which will almost never occur without adult involvement and exploitation. One of the ways of doing so is to require owners of premises in which such prostitution occurs to prevent it. Thus the fact that the applicant also controlled the premises here was an additional feature of criminality. In the circumstances here, however, it was precisely because of the applicant's involvement as owner that the applicant received the tainted money. His physical intervention by checking the books and collecting the cash added little - had he received the proceeds by way of rent, knowing its provenance, his criminality would not have been significantly less: the person who paid him would simply have been his accomplice. 10 The capacity in which an offender receives money contrary to s 91E will always be a most important feature of his or her criminality, as will be the extent to which he or she managed or controlled the prostitute in question and, generally, the events giving rise to the circumstances in which the offender was in a position to exploit the prostitute's vulnerability. Accordingly, it is inevitable that, in sentencing for the offence under s 91E, virtually all elements that subjected the applicant to punishment under s 91F must have been taken into account. 11 In Pearce v The Queen (1998) 194 CLR 610 McHugh, Hayne and Callinan JJ said, at 623 - "[40] To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principal must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts." 12 It is apparent from the passages which I have already cited from the reasons of the learned sentencing judge that she was fully alert to the overlapping features of these offences although, as I have implied, it does not appear that her Honour's language reflected the almost total overlapping that occurred in the circumstances of this case. Be that as it may, the sentences themselves (ignoring the concurrency issue) were virtually identical for each group of sentences. 13 Even complete concurrency would not have adequately dealt with this problem, since the sentences in each group "were flawed because they doubly punished…for a single act" namely the collection of money by a person involved in the management and ownership of a brothel that was the proceeds of child prostitution: cf Pearce 194 CLR at [49]. The mere fact, as is argued by the Crown in this Court, that the effect of the sentences imposed on the applicant was not disproportionate to the overall criminality of his conduct does overcome this fundamental problem (ibid). The situation in this case is to be distinguished from the situation where successive separate offences are committed where problems of overlapping are much less likely to arise. In such cases the problem is to ensure that arithmetical accumulation does not lead to an inappropriately harsh sentence. In the circumstances here the learned sentencing judge overcame this problem by making each offence against each section wholly concurrent. The question is whether making each group of concurrent sentences partially cumulative offended the principle against double punishment. 14 In Pearce the two counts held to be flawed for double punishment despite the concurrency of the sentences imposed for them were as follows: "Count 9: On 25 June 1994 at Yamba in the State of New South Wales, did maliciously inflict grievous bodily harm upon William George Rixon within intent to do him grievous bodily harm Count 10: On 25 June 1994 at Yamba in the State of New South Wales, did break and enter the dwelling house of William George Rixon and while therein did inflict grievous bodily harm upon the said William George Rixon." 15 Both of these counts alleged the infliction of grievous bodily harm, count 9 maliciously and with intent to inflict such harm whilst count 10 alleged that it was done when the offender broke and entered the victim's house. (This latter element was, of course, the additional feature.) The offender was sentenced on each of these counts to concurrent and identical sentences. When the matter came back to this Court for re-sentencing in accordance with the majority judgment, the sentence imposed in respect of count 10 was quashed and a fixed term of two years penal servitude to commence on the date upon which the additional term imposed upon count 9 commenced was substituted. It is clear that the approach reflected in this order was to impose a sentence in respect of count 10 which did not involve punishment for the infliction of grievous bodily harm, punishment for which had been incorporated in count 9. The point is, as it seems to me with all respect, that this Court acknowledged that the problem of double punishment was (as the passage above quoted from Pearce points out) not resolved or necessarily resolved by making the sentences for each offence concurrent. I interpolate that this is not merely a question of commonality of the legal elements of the offences. It is necessary, rather, to consider the commonality of facts and circumstances with particular reference to criminality. 16 The learned sentencing judge in the instant case adverted to the fact that, whilst the offender's conviction of the s 91F offences could be justified on the basis that he was the owner of the premises and knew that child prostitution was carried on in them "there was also ample evidence to justify the characterisation of the offender as one who was concerned in the management of the premises, albeit it is accepted that he did not control entry of person or their movement within the premises" and "played no part in accepting or recruiting the girls into the premises as prostitutes no in regulating their working hours". 17 The learned sentencing judge identified two distinct, though connected features of the applicant's criminality in the following way - "Át the end of the day, the offender played an active role in the management of premises used for acts of child prostitution and he directly received financial benefit, albeit not great, from those acts of child prostitution."

It seems to me that her Honour, in this passage, pointed to the distinction between the two main features of the applicant's offences, the first feature reflecting the offences under s 91F and the second feature reflecting the central feature of the S91E offences, though she focussed on the applicant's very limited management rather than on his ownership. Her Honour (rightly) regarded the 91E offences as more serious and thought that they should be accumulated on the 91F offences because "they represent a discrete form of criminality". Her Honour added that there "is, however a substantial overlap in the criminality exhibited by each set of offences" and mentioned that "the offences occurred over the same period of time in respect of the same two girls." On one reading, this passage might be interpreted in the sense that the "substantial overlap" was a reference to the fact that they occurred over the same period of time. However, I do not think that this was all that her Honour was seeking to convey. It is obvious that there was a substantial overlap both in time and circumstance and that her Honour was qualifying the point just made that the 91F offences represented a discrete form of criminality. As I have already mentioned, the overlap was almost complete since the active role in the management of the premises amounted to no more than checking the books and taking the money. There was, in reality, no difference in substance between the first of these activities and the second although the one activity was capable of being described in the two ways to which I have referred. 18 The matter might be put in the following ways: firstly, the applicant received moneys derived from child prostitution by going to the brothel, checking the amount received and collecting the cash; or, secondly, that the applicant was involved in the management of the premises used for child prostitution by checking the books and receiving the cash, or, thirdly, the applicant, being the owner of the premises attended on the tenant's place of business being a brothel used to his knowledge for child prostitution, checked the books and received the cash in part payment of rent. With the exception of the (not unimportant) additional feature of ownership in the third of these characterisations of the applicant's conduct, these seem to me to amount to the same thing. All could have been the subject of charges under s91E. The fact that they were not is a mere reflection of the possibility - referred to in Pearce - that the same criminal conduct may sometimes fall foul of more than one provision.

19 As appears at the commencement of this judgment, the applicant was sentenced on the s 91E offences to a term of two years imprisonment with a non parole period of twelve months and, on the 91F offences to a term of three years with a non parole period of twelve months. With unfeigned respect to her Honour, it is an inevitable the conclusion that these sentences reflected a substantial degree of double punishment. They are indistinguishable from the "flawed" sentences imposed on counts 9 and 10 in Pearce. This is not at all, of course, to suggest that the overall sentences imposed on the applicant were disproportionate to the criminality of his conduct. But, as appears from the majority judgments in Pearce that is not the end of the matter. The principle against double punishment is a vital part of the criminal law and this Court is obliged to interfere where there has been any significant breach of it.

20 It is therefore unnecessary for me to consider the other grounds of appeal contending that the sentences were otherwise defective including, in particular, possible non compliance with s44 of the Crimes (Sentencing Procedure) Act 1999. 21 It follows that leave to appeal should be granted.

The subjective circumstances 22 Since it is necessary to re-sentence the applicant the affidavits filed in this Court concerning his health should be read. Three affidavits were read on the hearing of the appeal, subject to the usual condition: Doreen Fay Campbell (the applicant's sister) sworn 28 February 2005; Sandra May Herbert-Lowe (the applicant's wife) sworn 28 February 2005; and Brian John Leo sworn 10 March 2005. The Crown did not have sufficient opportunity to respond to those affidavits and the Court gave leave for the Crown to do so. The Crown produced to the Court in due course a report of Dr Richard Mathews, Chief Executive Officer of Justice Health, dated 8 April 2005 and a report by Dr Richard Furst of the same day. The applicant also seeks to rely on additional affidavits of the deponents to whom I have referred. The Crown objects to their being read. I have not found it necessary to consider this objection, since the affidavits do not add any significant material to that which has already been provided. 23 Before moving to this material it is convenient to deal with the subjective circumstances, including the applicant's health as they were found by the learned sentencing judge. In this respect her Honour stated - "The offender is presently sixty-six years of age. He has no priors of any relevance to this sentencing exercise. He was the eldest of five siblings, he was raised in rural New South Wales. At the age of seventeen his mother died and it was left to the offender and his sister to provide care and guidance for three younger boys. The offender commenced at an early age in the union movement and rose to a high office. He worked as a union office holder for twenty-five years and retired in 1998 as joint-president of his district branch. As a result of the considerable media publicity which followed the charges having been laid against the offender, the offender had developed a serious depressive disorder. Between 15 November 2003 and 12 March 2004 the offender was admitted to a psychiatric facility on four occasions. Included in that course of treatment was electro convulsive therapy administered on 5 March 2004, which appeared to successfully remit the offender's depressive illness. He was diagnosed with major depression after his fourth admission on 30 January 2004, at which time his reasoning was described as illogical and he was on the maximum dose of anti depressants thought permissible at the time. A report from his treating psychiatrist is before me for the purposes of sentence. In the course of that report, the psychiatrist states: "The offender remains significantly depressed despite high levels of medication and is only able to function at a limited level." The offender has, however, responded well to the treatment and has been under the continuous care of that psychiatrist." (My emphasis.) 24 There was extensive and inevitably adverse media coverage which of course was most distressing for the offender and his family, although it did not result in threats so serious as those referred to in R v Allpass (1984) 72 ACrimR 561. It appears that following the initial media reporting of the case which included the applicant's address, his home was broken into and articles removed and he also received threatening calls which aggravated his state of anxiety. 25 In this case, the distress caused to the applicant by the publicity is taken into account because, of course, the illness that in part resulted from it is a relevant subjective circumstance. It may be that, in some cases, extensive publicity will, of itself, be a relevant factor in the consideration of sentence, although its significance will depend on the circumstances as a whole. It is not necessary to take this issue any further in this case: its real significance is that it was one of the causes of the applicant's very serious mental breakdown. 26 The affidavit read in this Court of Ms Herbert-Lowe, the applicant's wife, elaborates some matters already stated by her in a statement that was tendered on the sentence proceedings. She describes the distressing symptoms usually associated with major depression, which became particularly acute something over a month after he was charged when he cut his throat and wrists with a knife and was admitted to the psychiatric unit at Shell Harbour Hospital. Ms Herbert-Lowe reported that the applicant's condition gradually improved after the electro-convulsive therapy was completed in early March 2004 when the applicant returned home. As might be expected, the applicant's improvement was gradual but very far from complete, despite continuing treatment and psychiatric care. 27 Ms Herbert-Lowe said that, following the applicant's conviction and imprisonment, he again commenced to lose weight and the symptoms of depression became worse. She noted that on her visits the applicant appeared to be in a state of panic and was unable to focus or concentrate, as well as being extremely listless, apathetic and agitated. He appeared to have irrational fears for his safety and "to be out of touch with reality". She noted that he seemed to be unable to perform the most basic tasks regarding his personal care and noted a significant loss of weight. Ms Herbert-Lowe became concerned that the applicant's condition was not appreciated and was not being adequately dealt with. Ms Campbell's affidavit, though much briefer, supports the applicant's wife's observations about the applicant's condition since his imprisonment. The affidavit of Mr Leo does nothing more than annex a report from Dr Gordon Davies, a specialist psychiatrist who first examined the applicant in November 2003 and thereafter on many occasions both in his rooms and, following sentence, at Silverwater and Long Bay. He last reviewed the applicant on March 2005. Dr Davies had available to him, not only his own examinations but also the discharge summary from the Shell Harbour Hospital of early March 2004 and the applicant's prison medical file. The doctor's opinion was summarised as follows - "Mr Hilton is a sixty-five year old man who has developed a severe major depressive disorder following his arrest in September 2003. His depression was severe and proved refactory to treatment until he had ECT. Since then he has slowly improved but remains significantly depressed despite high levels of medication and was only able to function as a limited level prior to imprisonment. His condition was maintained while he had psychiatric support at the MRRC but he has again substantially deteriorated since his transfer to Cooma."

Dr Davies was of the view that, if the applicant remained in his present position, his mental state would be likely to further deteriorate. 28 Dr Mathew's letter of 8 April 2005 provides a summary of the ongoing management of the applicant's mental health issues. Amongst other things, Dr Mathews noted that in January 2005 the applicant was transferred for a brief time to Cooma Correctional Centre but was assessed there by medical staff as requiring a higher level of mental health care than available and, according, transferred to the MMTC about a month later, currently being accommodated in what I take to be an interim holding area at the Long Bay complex waiting for admission to D Ward at Long Bay Hospital, since it was felt that he would benefit from closer supervision of his depression. Dr Mathews noted that the applicant's condition was being monitored and it was not believed that an urgent move to D Ward was warranted. 29 Dr Furst interviewed the applicant in early 2005 and about a month later. He had available to him, amongst other things, the medical records from Justice Health and the report of Dr Davies of March 2005. When Dr Furst saw the applicant on the first occasion, he noted the following mental state features - "Psychomotor retardation, lack of spontaneity, depressed mood ("3 out of 10"), flat effect, feelings of hopeless and guilt, no evidence of psychotic beliefs or signs, no current suicidal ideation intent or plan, impaired memory for recent events and time sequence of legal and custodial experience." 30 Dr Furst concurred with Dr Davies' diagnosis of major depression but was also of the opinion that the applicant displayed symptoms and signs of a melancholic sub-type, with high risk of suicide and that he was also at risk given his lost appetite and significant weight loss. Accordingly, he was scheduled in accordance with the Mental Health Act 1990 and referred for admission when a bed became available to D Ward. In the meantime, he was carefully monitored and given medication. Dr Furst also suggested that a further course of ECT be instituted if the applicant's condition failed to improve. When the applicant was reviewed in April, there appeared to be an improvement in his overall condition, although he remained depressed, with low energy levels and anxious about his wife's ability to cope with the situation. Dr Furst considered that the improvement in the applicant's mental state over the months since he first saw him appeared to result from the increased services available to him - he had been seen regularly by psychiatric nurses and reviewed weekly by the Psychiatric Registrar. Furthermore, there appeared to be an initial positive response to a variation in his medication and increased access to weekly visits by his wife. The doctor considered that his once high suicide risk could now be rated as moderate. It is clear, however, that this depended upon optimal treatment of the applicant's depressive disorder, careful and regular monitoring of his mental state and the use of additional treatment, including ECT, if required. Dr Furst noted that the question of the applicant's placement was "complex due to his unique circumstances and the sexual nature of his conviction". His being placed on protection by the Department of Corrective Services, most likely involving isolation in a single cell for twenty-three hours a day and non association with other patients, would for obvious reasons create considerable difficulty as far as his mental health is concerned. 31 The picture disclosed by the material tendered on appeal, in particular that produced by the Crown, is troubling. The learned sentencing judge's apparent view that the applicant's mental health had shown marked improvement, though then justified, has proved to be significantly over optimistic. It is important to observe, I think, that the applicant's "unhappiness" is far from the feelings of distress which would naturally occur to a person of his age and antecedents who found himself imprisoned. I think it can fairly be inferred that the applicant's severe mental illness has been a direct consequence of his being charged with the offences of which he was convicted and the punishment which was rightly meted out to him. At the same time, it is fairly obvious that his state of health means that imprisonment has had far harsher consequences for him than for the general run of healthy prisoner. 32 The learned sentencing judge, no doubt because of what appeared to be an apparently positive response to treatment, took into account as an aspect of the harshness of his punishment that the nature of the offences would more than likely result in the applicant's being placed in protection but did not, I think, consider that his mental health was also material in this respect. As I have mentioned, it seems to me that his compromised mental health also needs to be given significance in this context.

Conclusion and proposed orders 33 Despite the powerful subjective circumstances of this case, the objective criminality of the offences for which the applicant was convicted was substantial and such as to necessitate a term of fulltime custody. I have no hesitation in rejecting the submission that a less serious form of punishment was warranted. Nor do I think that the sentences imposed for the s91F offences were inappropriate. However, for the reasons that I have given, the appeal in respect of the s91E offences should be allowed. I would substitute a fixed term of two months imprisonment on each offence to date from 22 November 2005 and expire on 21 January 2006. 34 BELL J: I agree with Adams J. 35 HALL J: I agree with Adams J. *******

10/10/2005 - Catchwords added. Minor typographical errors corrected. - Paragraph(s) 2, 13, 15, 27, 29,31

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