Hall (a pseudonym) v The King [2023] VSCA 221 (13 September 2023)

Last Updated: 15 September 2023

SUPREME COURT OF VICTORIA COURT OF APPEAL

S EAPCR 2023 0127

EUGENE HALL (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

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JUDGES:	KAYE JA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 September 2023
DATE OF JUDGMENT:	7 September 2023
DATE OF REASONS:	13 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 221
JUDGMENT APPEALED FROM:	[2021] VCC 1672 (Judge Hassan)

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CRIMINAL LAW – Appeal – Sentence – Indecent act with child – Failing as registered sexual offender to comply with reporting obligations – Fresh evidence – Applicant diagnosed with aggressive and life-threatening leukaemia – Leave to appeal granted – Appeal allowed.

Crimes Act 1958 s 47; Sentencing Act 1991 s 11; Sex Offenders Registration Act 2004 s 46(1A).

R v Eliasen (1991) 53 A Crim R 391; R v McLachlan [2004] VSCA 87; (2004) 8 VR 403.

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Counsel
Applicant:		Mr PJ Smallwood with Ms B Proud
Respondent:		Mr DA Glynn
Solicitors
Applicant:		James Dowsley and Associates
Respondent:		Ms A Hogan, Solicitor for Public Prosecutions

KAYE JA
J FORREST AJA:

1. On 25 June 2021, the applicant, Eugene Hall, was convicted by a jury of two charges of indecent act with a child under 16. One count involved the sexual assaults of a young boy on approximately thirty occasions. The second count involved a sexual assault on a young girl on one occasion.
2. The applicant pleaded guilty to an unrelated charge of failing to comply with reporting obligations under the Sex Offenders Registration Act 2004.
3. The total effective sentence imposed by her Honour Judge Hassan in October 2021 was four years and three months’ imprisonment with a non-parole period of three years’ imprisonment.
4. This application for leave to appeal is on the ground that the applicant, whilst in custody, has been afflicted with a debilitating and aggressive life-threatening condition of acute myeloid leukemia (‘AML’), a form of blood cancer. It was not in dispute that that circumstance constitutes fresh evidence; the applicant argued that this development should cause this Court to revisit the original sentence imposed by the sentencing judge.
5. We should make it clear at the outset that there is no challenge to the reasoning or adequacy of the sentencing judge’s sentence on the material placed before her. This application turns upon what this Court makes of the significant change in the applicant’s medical condition — unknown to all at the time of sentencing.
6. At the conclusion of the hearing of the application for leave to appeal, we ordered that it be granted, the appeal be allowed, and the applicant be resentenced in a manner identical to the sentence imposed below, save that the global non-parole period be adjusted from 3 years to 2 years and 206 days, not including 7 September 2023. That non-parole period reflects the time already served in detention, with the effect that the applicant may now immediately apply for parole.
7. We indicated that our full reasons for so ordering would follow. These are our reasons.

Circumstances of the offending and its consequences

8. The first charge related to Seth Stewart.^[2] Seth was born in 2007. At the time of the offending (from 2011–13), Seth was aged between four and six. The applicant had been in a relationship with Seth’s mother, and he abused that trust in order to offend against Seth. Without the permission of Seth’s mother, the applicant regularly showered with Seth. On around 30 occasions, he rubbed his erect penis against Seth’s penis. He called it ‘sword fighting’.
9. Charge 2 related to Amy Brooks.^[3] Amy was born in 2006. The offending against Amy occurred on one occasion, between January 2016 and March 2016,^[4] during which time Amy was aged nine. At that time the applicant had a familial connection with Amy’s mother and often babysat her. After showering or bathing Amy, the applicant would wrap her in a towel and take her to the bed, where he would unfurl the towel, causing her to roll onto the bed naked. He called this the ‘motorbike game’. The offending the subject of the charge is that on one occasion, the applicant grabbed Amy’s wrist and placed her hand on his penis over his clothing.
10. There are a couple of features of this offending and its consequences which need to be mentioned. On 29 August 2019, the applicant changed his plea to not guilty. This, with the COVID-19 restrictions, caused a significant delay in the case coming to trial. The second is tragic. After the applicant changed his plea and was bailed, he lived close to Seth’s family’s home. Seth’s mother became extremely concerned for his welfare, spending nights awake with him, as he had signalled that he was going to end his life.
11. In a victim impact statement dated 19 July 2019, Seth said:

You could have said guilty 3 years ago but you didn’t, you made me have to relive it last year, you made me have to go through it again, have to answer these questions over and over and over again. ...

You were the one male apart from my grandpa I thought wouldn’t ever hurt me but you did and now I have to work out a way to be ok again.

12. Tragically, in January 2020, Seth committed suicide. However, the prosecution accepted and the judge held that this could not be directly attributed to the applicant’s offending.
13. The background of the single charge relating to sex offence registration is as follows. On 17 March 2016, the applicant was placed on the Sex Offender Register with a reporting period of 15 years after pleading guilty to using a carriage service to access child pornography, and knowingly possessing child pornography. On 28 December 2016, the police executed a search warrant at his address. They seized a phone, analysis of which revealed a login page for an email address. Contrary to his reporting obligations, he had failed to provide this email address to police.
14. When interviewed on 25 January 2017, the applicant admitted that he had not advised police of the email address. He said that the address was created in around January or February 2016 at the shop where he purchased the phone so that he could download applications, that he did not use the address, and that he had forgotten all about it.
15. The judge accepted that explanation.^[5]

The sentence

16. On 22 October 2021, the applicant was sentenced by the judge, as follows:

	Offence	Maximum		Sentence	Cumulation
1	Indecent Act with a Child under 16 between 1 January 2011 and 31 December 2013 (contrary to s 47(1) Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1991	10 years’ imprisonment		3 years 10 months’ imprisonment	N/A
2	Indecent Act with a Child under 16 between 1 January 2016 and 31 March 2016 (contrary to s 47(1) Crimes Act 1958 as amended by the Crimes (Sexual Offence and Other Matters) Act 2014	10 years’ imprisonment		12 months’ imprisonment	4 months
Total effective sentence on C18116080.2			4 years 2 months’ imprisonment
1	Failing as a registered sexual offender to comply with reporting obligations on 26 January 2017 (contrary to s 46(1A) Sex Offenders Registration Act 2004)	5 years’ imprisonment		3 months’ imprisonment	1 month
Total effective sentence on H11794305.4			3 months’ imprisonment, of which, 1 month is cumulative on the sentence imposed on the other indictment.
Section 6AAA[6] statement			6 months’ imprisonment

17. The combined effect of the sentencing on the three charges was as follows:

Global total effective sentence	4 years 3 months’ imprisonment
Non-parole period	3 years’ imprisonment
Pre-sentence detention declaration pursuant to s 18(1) Sentencing Act 1991	251 days
Section 6AAAA statement for indictment H11794305.4	6 months’ imprisonment
Other relevant orders	Pursuant to s 6F Sentencing Act 1991, the offender is sentenced as a serious sexual offender in respect of charge 2. Pursuant to s 34 Sex Offenders Registration Act 2004, the length of the reporting period is life.

The judge’s reasons

18. It is not necessary to set out the tortuous procedural history leading to the disposition of the primary charges by the jury verdict.
19. The applicant was at the time of sentencing 52 years of age. The judge noted that his parents separated when he was very young, whereupon he was brought up by his mother. He remained close to his mother throughout his life. She died four months prior to the applicant’s sentencing, whilst he was in custody. He was only able to watch her funeral on a video link.
20. The applicant left home at the age of 16 because he could not get along with his stepfather. He also told a forensic psychologist, Dr Dion Gee, that he was sexually abused by a group of older boys when he was about six or seven, although he had not sought any treatment in respect of that abuse.
21. Since leaving school in Year 10, the applicant had been stably employed. He had had two intimate relationships, in which he fathered four daughters, all of whom were still supportive of him.
22. The applicant had a criminal record. On 17 March 2016, he was sentenced in the County Court for accessing child pornography and possessing child pornography, as well as for possession of a drug of dependence. He was sentenced to nine months’ imprisonment, to be released after three months on a good behaviour bond for two years.
23. The only evidence relevant to the applicant’s health was as follows. He had suffered from chronic depression, anxiety, and stress at the prospect of being separated from his mother with whom he had a strong attachment and with whom he was living. He had been seeing a clinical psychologist regularly for almost eight years, and had experienced stress and anxiety occasioned by court proceedings. He had been treated by his general practitioner, Dr Heather McCallum, for 12 years. She said that he had always suffered anxiety, and had taken an antidepressant for many years. He also had bouts of asthma.
24. No submissions in respect of R v Verdins^[7] were made to the sentencing judge. It was, however, submitted, and accepted by the sentencing judge, that in accordance with general sentencing principles, his mental health difficulties should be taken into account.^[8]
25. As to the offending, counsel for the applicant submitted to the sentencing judge that the objective seriousness of the offending (in contradistinction to its effects, he stressed) against Seth fell ‘squarely into the middle range’, and against Amy, into the ‘lower end’. He submitted that Amy’s victim impact statement appeared to indicate that the offending had not had a palpable or long-lasting effect on her.
26. Those submissions were largely accepted by the sentencing judge, though she did say this:

Amy says that she has been doing fine since you have been out of her life. Ms Brooks [Amy’s mother] says she is devastated by your offending. You were a family member and she trusted you. She says Amy has anxiety, and she has what Ms Brooks describes as ‘severe trust issues’. Ms Brooks says Amy is one of four sisters. She says her other daughters are also exhibiting signs of anxiety around males and that she worries about the impact on all her daughters into the future. ...

I accept the characterisation of the parties that in respect of Seth, your offending is around mid-range seriousness, and in respect of Amy, it is a low-range example of the offence. Your moral culpability is, however, high; these children were in your care and, in Seth’s case, there was an emotional bond which you exploited. You are without remorse, which does not aggravate your sentence, but, as has been discussed, precludes you from the significant mitigatory discount that pleas of guilty would have attracted.^[9]

27. The judge regarded the risk of reoffending as low and the prospects of rehabilitation as being good.
28. However, her Honour observed that the sentencing principles of general and specific deterrence, denunciation and community protection were all engaged; and that ‘[t]he Court must send a clear message that the sexual abuse of children will not be tolerated’.^[10]

The application for leave to appeal

29. On 21 July 2023, the applicant filed an application for leave to appeal against sentence, on the basis that fresh evidence had emerged indicating the existence of AML of which the sentencing judge (and indeed no-one) had been aware at the time of sentencing. That application was heard in this Court on 7 September 2023.
30. By his application for leave to appeal dated 21 July 2023, the applicant advanced one proposed ground of appeal,^[11] namely:

Ground 1: It is in the interests of justice that the County Court sentence imposed on the applicant be set aside and that a different sentence be imposed given new evidence about his acute myeloid leukemia diagnosis and prognosis.

31. Coupled with that application was an application for extension of time to file notice of his application for leave to appeal, as the leave application had been filed 20 months out of time. The application for extension of time was not opposed by the Director.
32. On 30 August 2023, the Director filed her response to the applicant’s written case, by which she conceded that evidence of the applicant’s AML diagnosis and prognosis was fresh evidence, and that it was open to this Court to reopen the sentencing discretion. It was further conceded that, in accordance with the applicant’s submissions, it was open to this Court to impose a sentence of no more than the time already served.

The fresh evidence

33. On 18 July (the ‘July report’) and 4 September 2023 (the ‘September report’), Dr Kai Xing Goh, the haematology registrar at St Vincent’s Hospital, who was part of the applicant’s treatment team, provided reports to the applicant’s lawyers. In both reports she confirmed the diagnosis of AML and set out the treatment plan and prognosis. In particular she referred to the potential of alloSCT (allogenic stem cell treatment), commonly referred to bone marrow transplant, which may if available alleviate the applicant’s condition and which might effect a cure. In the September report she noted that although initial chemotherapy had not been successful, the applicant had been able to, recently, achieve remission with second-line chemotherapy. She said this:

If [the applicant] is able to remain in remission from chemotherapy, he will likely proceed to alloSCT. AlloSCT is not available through St. Vincent’s Hospital, and to that end, [the applicant] has been referred to Royal Melbourne Hospital (RMH). He has already had some consultations with them, and is deemed fit for transplant if a suitable donor can be identified and he remains in remission. The process of alloSCT is complex and high risk, and patients require very close monitoring including for several months following discharge from hospital. The RMH team have confirmed that they are able to conduct an ASCT on a prisoner, but logistically it would be preferable if he were no longer incarcerated.

If [the applicant’s] disease relapses, his prognosis would be poor. Under those circumstances, ongoing chemotherapy may be futile and we would generally recommend accessing novel therapy through clinical trials noting that clinical trials are not easily available to patients who are incarcerated. If he is unable to access clinical trials, his survival is expected to be measured in a few weeks.

We were told by counsel for the applicant that the applicant is currently in the secure ward at St Vincent’s Hospital and continuing to receive treatment. It was unclear, however, whether the Royal Melbourne Hospital team would travel to the applicant, or whether he would be transported to the Royal Melbourne Hospital.

Consideration

34. It was, quite properly, not disputed by the Director that the evidence surrounding the diagnosis, prognosis and treatment of the applicant’s AML constituted fresh evidence. That concession was correct. In R v McLachlan, Chernov JA (with whom Winneke P and Vincent JA agreed) said:

It seems plain enough that evidence of an event occurring after sentence is not admissible if it is led merely to show that the sentence imposed is excessive, or, put another way, that the sentence turned out to be excessive. But evidence of an event occurring subsequent to the sentence may be admitted, in the court’s discretion, in order to avoid a miscarriage of justice, if it shows the true significance of a relevant circumstance that existed at the time of sentence, even though its existence was then not known.^[12]

35. The Full Court (Crockett J, with whom McGarvie J and Phillips J agreed) had earlier said in R v Eliasen:

This Court accedes very sparingly to applications of this kind. Applications for leave to appeal are dealt with on the basis that, unless the sentencing judge has been shown to have erred in the exercise of his sentencing discretion, this Court will not intervene in the matter. The question as to whether error has occurred is to be determined by a reference to the matters available to be considered by the judge at the time that he determines upon the sentence.

However, it is plain that authority now establishes that this Court may, if it considers the case an appropriate one to do so, permit evidence of matters or events that have occurred since the date of the passing of the sentence upon an applicant to be placed before this Court with a view to this Court’s reconsidering the matter in the light of that additional evidence. It must follow that, if the Court does think that the additional evidence should lead to the imposition of a sentence different from that imposed by the judge, then even where the judge’s sentencing discretion has not miscarried the case must be treated as one calling for appellate intervention.

It has been said by this Court that if, on the material placed before it for the hearing of an application for leave to appeal against sentence, it considers that the sentence imposed was not an appropriate sentence, then the application may be allowed and a different sentence passed in lieu of that imposed below: see Prior [1966] VicRp 64; [1966] VR 459; Tutchell [1979] VicRp 24; [1979] VR 248; Martin (unreported, Court of Criminal Appeal, Vic, 19 March 1990).^[13]

36. The applicant argued that the fresh evidence of the applicant’s AML bore upon the sentencing exercise in five ways. First, the burden of the applicant’s imprisonment was greater. Secondly, the imprisonment affected his prospects of obtaining appropriate medical treatment. Thirdly, the weight to be attributed to general deterrence, specific deterrence and community protection were significantly mitigated. Fourthly, each day of the sentence being served by the applicant represents a more substantial proportion of the period of life which is left to him than would have been anticipated when it was imposed. And fifthly, compassion and mercy were now relevant in the sentencing exercise.
37. Initially the Director, armed with the July report, agreed that it would be appropriate for this Court to impose a new head sentence which would enable the applicant’s immediate release from prison and palliative treatment. However, in the light of September report, the Director on 6 September 2023 withdrew her concession that the applicant could be resentenced to an amount of time equal or less than the time he had already spent in custody. She submitted that her initial concession was founded upon the uncertainty surrounding the success of the second line of chemotherapy, which ‘has now resolved’.
38. The Director further submitted that alloSCT therapy would be available to the applicant, even if he were in custody. She submitted that ‘[t]he available material shows that the applicant is able to receive as good a treatment while in custody as he could if he were at liberty’.
39. We accept that the evidence of Dr Kai-Xing Goh creates a totally different situation as to the applicant’s health to that before the sentencing judge. It can be readily inferred that his latent haematological cancer was quiescent at the time of sentencing. This evidence falls within the criteria we have just identified. This is therefore one of those rare cases in which the sentencing discretion of this Court is enlivened.
40. As is apparent, the evidence before us demonstrates that the applicant has been recently diagnosed whilst in custody with a serious life-threatening health condition which is now, at least temporarily, in remission. The medical practitioners responsible for his treatment are striving to maintain that remission with further chemotherapy in order to sustain the applicant so that he may then undergo alloSCT. That treatment is only available if the applicant can maintain remission, and if a suitable donor can be identified. The transplant process is complex.
41. It is uncontroversial that the circumstances of the applicant have changed radically since he was originally sentenced. We accept that this is one of those rare cases where the evidence is truly fresh evidence as described in the authorities we have referred to. Notwithstanding the Director’s submission, we are satisfied that the applicant will have better access to appropriate medical treatment, and, if circumstances require, palliative care, if he is no longer incarcerated. For instance, the alloSCT therapy should be carried out at the Royal Melbourne Hospital where the specialist team is based. Whilst it is not impossible for the treatment to be carried out in protective custody at St Vincent’s Hospital, this is far from ideal, and it can be assumed would place added strain on stretched hospital resources.
42. By reason of the applicant’s medical condition, the sentencing purposes of specific deterrence and protection of the community are significantly less relevant. In addition, the applicant is a less suitable vehicle for the sentencing purpose of general deterrence. It is also relevant that the applicant has served a significant proportion of his non-parole period.
43. Even allowing for these matters, we are firmly of the view that it would be inappropriate to alter the head sentence, which we consider to quite moderate. This is because of the serious nature of the offending. The two victims were both young and vulnerable; and, in particular in charge 1, the victim of the offending was between four and six years of age and was the subject of numerous acts of abuse. The offending involved a gross breach of trust. The conduct that was the subject of both charges was of a kind that invariably causes significant and enduring emotional and psychological harm to the victim. The offending was, to say the least, an egregious breach of the fundamental moral standards of our community.
44. However, the applicant should be allowed an amelioration of the non-parole period to reflect his parlous circumstances and particularly his need for intensive treatment. We therefore ordered that the non-parole period be reduced to 2 years and 206 days — being the amount of time served to date, not including the date on which this application was heard, meaning that the applicant will become immediately eligible for parole. Whether and when that occurs will be a matter for the Parole Board, which will have the benefit of these reasons when making its decision.
45. The fact that the appeal is allowed, and the applicant is to be resentenced, does not detract from the fact that the sentence originally imposed by the sentencing judge was entirely appropriate and just.

Conclusion

46. In those circumstances, notwithstanding the serious nature of the offending committed by the applicant, we made orders to the following effect:

(1) The application for leave to appeal is granted.

(2) The appeal is allowed.

(3) The sentences on charges 1 and 2 on Indictment No C1811680.2 and the sentence on charge 1 in Indictment No H11794305.4 and the total effective sentence of 4 years and 3 months’ imprisonment imposed by the County Court on 22 October 2021 are confirmed.

(4) The non-parole period of 3 years’ imprisonment fixed by the County Court on 22 October 2021 is set aside.

(5) In lieu, a non-parole period of 2 years and 206 days is fixed.

(6) It is declared that the period of 2 years and 206 days, not including 7 September 2023, is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that declaration was made and its details.

(7) All other orders of the County Court are confirmed.

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^[1] To avoid the possibility of identifying the victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

^[2] A pseudonym.

^[3] A pseudonym.

^[4] This was, unlike the charge relating to Seth, not a course of conduct charge.

^[5] DPP (Vic) v Hall (a pseudonym) [2021] VCC 1672, [40] (‘Reasons’).

^[6] Of the Sentencing Act 1991.

^[7] (2007) 16 VR 269; [2007] VSCA 62.

^[8] Reasons, [36], [41].

^[9] Reasons, [16], [39].

^[10] Reasons, [42].

^[11] For convenience, the proposed ground of appeal will be referred to as a ‘ground’ from here on.

^[12] R v McLachlan [2004] VSCA 87; (2004) 8 VR 403, 406–7 [10] (Winneke P agreeing at 410 [24], Vincent JA agreeing at 410 [25]); [2004] VSCA 87 (emphasis added) (citations omitted). See also Rout v The Queen [2016] VSCA 126, [49] (the Court), quoting R v Nguyen [2006] VSCA 184, [36] (Maxwell P agreeing at [1], Neave JA agreeing at [2]).

^[13] (1991) 53 A Crim R 391, 394 (McGarvie J agreeing at 397, Phillips J agreeing at 397). See also Langton (a pseudonym) v The Queen [2022] VSCA 79, [16]–[19] (Maxwell P, McLeish and Macaulay JJA).