Best v The Queen
[2019] VSCA 124
•7 June 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0148
SCOTT PETER BEST Applicant v THE QUEEN Respondent ---
JUDGES: BEACH, KYROU and KAYE JJA WHERE HELD: MELBOURNE DATE OF HEARING: 4 June 2019 DATE OF JUDGMENT: 7 June 2019 MEDIUM NEUTRAL CITATION: [2019] VSCA 124 JUDGMENT APPEALED FROM: [2018] VCC 921 (Judge Pullen) ---
CRIMINAL LAW — Sentencing — Three charges of sexual penetration of a child under the age of 16 years — Four related summary charges — Applicant sentenced to five years, three months and 21 days’ imprisonment with a non-parole period of three years — Whether sentences manifestly excessive — Early guilty plea — Young offender — Remorse — Low risk of recidivism — Family support — Need for protective custody in adult gaol — Principle of parsimony —Application for leave to appeal against sentence granted — Appeal allowed — Applicant resentenced to two years, 10 months and 21 days’ imprisonment with a non-parole period of one year and nine months.
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APPEARANCES: Counsel Solicitors For the Applicant: Mr P J Smallwood with
Mr J ConnollyAdrian Paull Criminal Lawyers Pty Ltd For the Respondent: Mr J C J McWilliams Mr J Cain, Solicitor for Public Prosecutions BEACH JA
KYROU JAKAYE JA:
1 The applicant pleaded guilty before the County Court to three charges of sexual penetration of a child under the age of 16 years, and to four related summary charges. After a plea that was presented on his behalf, he was sentenced to a total effective term of five years, three months and 21 days’ imprisonment, with a non-parole period of three years.[1] That sentence was comprised as follows:
[1] DPP v Best [2018] VCC 921 (‘Reasons’).
Charge Offence Max Penalty Sentence Cumulation 1 Sexual penetration of a child under 16
Crimes Act 1958 s 45(1)
10 years[2] 15 months 7 months 2 Sexual penetration of a child under 16
Crimes Act 1958 s 49B(1)
15 years[3] 42 months Base 3 Sexual penetration of a child under 16
Crimes Act 1958 s 49B(1)15 years 2 years 12 months Related Summary
Offence 2
(CR-18-00517)Harass witness
Summary Offences Act 1966 s 52A120 penalty units or 12 months 3 months 1 month Related Summary
Offence 4 (CR-18-00517)Contravene a conduct condition of bail
Bail Act 1977 s 30A(1)30 penalty units or 3 months 30 days 14 days Related Summary
Offence 6 (CR-18-00517)Contravene family violence intervention order
Family Violence Protection Act 2008 s 123(2)240 penalty units or 2 months 2 months 1 month Related Summary
Offence 4 (CR-18-00518)Contravene a conduct condition of bail
Bail Act 1977 s 30A(1)30 penalty units or 3 months 14 days 7 days Total Effective Sentence: 5 years 3 months and 21 days’ imprisonment Non-Parole Period: 3 years Pre-sentence detention declared: 243 days 6AAA Statement 9 years’ imprisonment with a non-parole period of 6 years Ancillary orders Forfeiture order, Sex Offender Registration Act 2004 s 34 – reporting for life [2]Charge 1 has a different maximum penalty, and is charged under a different section of the Crimes Act 1958 to Charges 2 and 3. The charged timeframe for the first charge was 30 January 2016 – 1 April 2016 and the version of the Crimes Act 1958 in force at that time was version 260, effective from 1 December 2015.
[3] Charges 2 and 3 fall under version 270 of the Crimes Act 1958, effective from 1 July 2017.
2 The applicant seeks leave to appeal against sentence on the following ground:
The individual sentences imposed on each of the three sexual penetration charges (being charges 1, 2 and 3 on Indictment No: C1711513), the orders for cumulation made on the first and the third of the sexual penetration charges (being charges 1 and 3 on Indictment No: C1711513), the total effective sentence and the non-parole period fixed are each manifestly excessive.
Particulars
(a) The sentences imposed are manifestly too long; and
(b)The wrong type of sentence was imposed. The applicant ought to have been sentenced to either a term of imprisonment in combination with a community correction order or a youth justice centre order, given:
(i) His youth;
(ii) The absence of any criminal record;
(iii)The sentencing principles that his youth, in combination with his otherwise good character, gave rise to;
(iv)His admissions and guilty pleas, his pleas having been entered at the earliest opportunity;
(v)His remorse, in particular that that he exhibited subsequent to his offending;
(xi)The absence of certain otherwise aggravating features;
(xii)The assessment that his risk of sexual recidivism was low;
(xiii) The family support that he enjoys;
(ix)The fact that he was in protective custody, and anxious and vulnerable in adult gaol; and
(x) The principle of parsimony.
Circumstances of offending
3 The applicant was born on 7 January 1999. At the date on which he was sentenced, he was 19 years of age.
4 The offence, that was the subject of the first charge of sexual penetration, concerned a single act that was committed between 30 January 2016 and 1 April 2016. The applicant was then 17 years of age. The complainant, Kristen Hamilton,[4] was 14 years of age at the time of the offence. The offence, that was the subject of the second charge of sexual penetration, concerned a course of conduct between 1 April 2017 and 30 November 2017. The applicant was then 18 years of age. The complainant, Samantha Hurst,[5] was 13 years of age at the time of that offending. The offence, that was the subject of the third charge of sexual penetration, occurred on 24 August 2017. The applicant was then 18 years of age. The complainant, Jessica Bennett,[6] was 14 years of age at the time of that offence.
[4]Pseudonym.
[5]Pseudonym.
[6]Pseudonym.
5 The applicant and the victim of the first offence, Kristen Hamilton, first met while they were students at Ballarat Secondary College, when she was in Year 7 and he was in Year 10. In about March 2016, Kristen Hamilton was at her friend’s house for a sleepover. They left the house late at night, and met up with the applicant, who lived nearby. Together, they walked to another friend’s house. The applicant and Kristen Hamilton stayed there for a short time, and then they went to the applicant’s home. They entered his bedroom, and the applicant had sexual intercourse with Kristen Hamilton. That conduct comprised the offence that was the subject of charge 1.
6 For some time after that incident, the applicant and Kristen Hamilton exchanged text messages. In those messages, the applicant and Kristen Hamilton expressed affection for each other, and the applicant made a number of sexual suggestions to her. Those messages continued, it seems, until August 2017, during the time of the offending by the applicant that was the subject of charges 2 and 3.
7 In early July 2017, the victim of the second charge, Samantha Hurst, met the applicant through mutual friends. At an early stage during the relationship, Samantha told the applicant that she was 13 years of age.
8 The applicant and Samantha engaged in sexual intercourse about one week after they first met. Thereafter, they would meet together three or four times each week. During the period of their relationship, they engaged in sexual intercourse on approximately thirty occasions, which occurred both at the applicant’s home and in his vehicle. That conduct constituted the offence that was the subject of charge 2.
9 On 18 August 2017, Samantha attended the Ballarat Community Health Centre. She undertook a pregnancy test that was positive. Subsequently, she gave birth to a baby boy who she has raised with the assistance of her mother. On 23 August 2017, the applicant was arrested and interviewed for the offences that related to Samantha Hurst. During the interview, he admitted having sex with Samantha. When he was asked how old she was, he said ’14, 13 maybe, I’m not sure’. When asked whether he was aware that it was illegal to have had sex with Samantha, he said ‘It’s not right’.
10 After the interview, the applicant was bailed on his own undertaking on conditions that included that he not go or remain within 200 metres of any place where Samantha lived, worked or attended school or child care. In breach of that condition, on the same day, at 11.59 pm, he attended at Samantha’s home in his vehicle (Summary charge 4: breach of bail by going within 200 metres of Samantha’s home).
11 While the applicant was at Samantha’s home, he spoke to her sister and her boyfriend, and to Samantha’s friend, Jessica Bennett. After Samantha’s sister and her boyfriend went inside the house, Jessica Bennett left with the applicant in his vehicle. The events that followed, and to which we shall return shortly, were the subject of charge 3.
12 On 28 August 2017, an intervention order was granted by the Ballarat Magistrates’ Court against the applicant, with Samantha Hurst as the affected family member. The order contained a condition that prohibited the applicant from contacting Samantha Hurst by any means. In contravention of that condition, the applicant and Samantha sent Snapchats to one another, which included photographs of Samantha. That conduct constituted summary charge 6 (breach of family violence intervention order by communicating with Samantha Hurst via Snapchat).
13 Returning to the offence that was the subject of charge 3, Jessica Bennett had previously met the applicant through a mutual friend. When they first met, Jessica told the applicant that she was 14 years of age. Between 15 August and 24 August 2017, they exchanged text messages, in which the applicant asked Jessica to have sexual intercourse with him.
14 As already mentioned, when the applicant left the home of Samantha Hurst, which he had attended on the evening of 23 August 2017, he was accompanied in his motor vehicle by Jessica Bennett. For some time they drove around the Ballarat area. While doing so, the applicant spoke about his aim of sleeping with fifty females, and he said that his tally was then up to 47 females. During that conversation he asked Jessica to have sex with him. At about 3.00 am on 24 August 2017, the applicant parked his vehicle behind the vacated campus of Ballarat Secondary School. There the applicant and Jessica kissed and undressed, and the applicant had sexual intercourse with her. While doing so, Jessica incurred some bruises on her neck that were consistent with ‘love bites’. The act of sexual penetration was the subject of charge 3.
15 On 24 August 2017, the applicant was interviewed by police about offences relating to Jessica. During the interview, he admitted that in breach of bail he had attended within 200 metres of Samantha’s home. He also admitted having sexual intercourse with Jessica Bennett, and knowing at the time that she was 14 years of age.
16 On 28 August 2017, the applicant was granted bail by the Ballarat Magistrates’ Court on a number of conditions, which included that he not contact any witnesses for the prosecution except the informant, and that he not use any form of social media. Between 3 September 2017 to 6 October 2017, the applicant communicated with Jessica Bennett almost every day by telephone (including text messages) and via Snapchat (summary charge 4: breach of conditions of bail by contacting Jessica Bennett via Snapchat). During those communications, Jessica revealed to the applicant that she had given a statement to the police and had told them ‘everything’. The applicant responded that he was going to get people ‘to smash her head in’, and that he would ‘throw blocks through her mother’s windows’ (summary charge 2: harass witness).
17 On 23 September 2017, the applicant again attended at the Ballarat Police Station at the informant’s request. He was interviewed by police for offences of sexual penetration with a child under the age of 16 relating to the first complainant, Kristen Hamilton. He made a ‘no comment’ record of interview. The applicant was then charged and released on bail on the same conditions that the Ballarat Magistrates’ Court had imposed on 28 August 2017.
18 Subsequently, on 12 October 2017, the victim of the third charge, Jessica Bennett, attended at the Ballarat Police Station. She provided a statement, and advised police that the applicant had been in contact with her for the past month via her telephone and Snapchat, and that he had also made threats towards her. As mentioned, that conduct constituted summary charge 4 (breach of conditions of bail) and summary charge 2 (harass witness). On 18 October 2017, the applicant was arrested at his home address. His telephone was seized by the police and found to have a message waiting under the Snapchat application that was from Samantha Hurst.
19 The applicant has no previous criminal record. He pleaded guilty to the charges at the committal proceeding on 8 March 2018. As at the date of sentence (14 June 2018), he had been in custody for 243 days.
Victim impact statements
20 Samantha Hurst, her mother and her sister, each made victim impact statements in respect of charge 2. The victims in respect of charge 1 and charge 3, Kristen Hamilton and Jessica Bennett, declined to provide such a statement.
21 Each of the three victim impact statements, tendered in respect of charge 2, were directed to the significant effect that the offending had on the life and future of the victim of that offending, Samantha Hurst. As her mother pointed out, Samantha had only finished her primary education in 2015, and one and a half years later she had fallen pregnant. In view of her young age, Samantha’s labour was particularly traumatic and painful. Understandably, since then, she has been affected by ongoing tiredness and the stress of having a baby. As result of the offending, Samantha has been deprived of her adolescent and teenage years. Instead of being able to enjoy all the activities ordinarily engaged in by young girls and adults in that age group, she has been preoccupied with the care of her baby. She was unable to continue with her education. As her sister has pointed out, it is incongruous ‘to see someone bringing up a child when she doesn’t have basic year 8 knowledge and life skills’. Samantha and her mother are afraid of the applicant and his friends, and Samantha stated ‘I don’t feel that I have a safe future free from worry’.
The plea
22 On the plea, counsel for the applicant contended that there were a number of matters that mitigated the moral culpability of the applicant for the offending. In particular, each complainant was a willing participant in the sexual activity. There was a complete absence of any breach of trust, coercion or violence or threats of violence, many of which features are commonly associated with the form of offending committed by the applicant. At the time, the applicant was young, aged 17 in respect of charge 1, and aged 18 years in respect of charges 2 and 3. Thus, it was submitted the disparity between his age and that of the victims was ‘modest’ by comparison with other cases. Further, it was submitted, there was no evidence that the victims were particularly vulnerable to the applicant, and it was noted that the victims in respect of charges 1 and 3 had declined to make a victim impact statement. It was also submitted that the offending occurred in circumstances in which each victim and the applicant were ‘part of a social scene in which sexual activity between the various members was common’.
23 On the plea, a report of Ms Gina Cidoni, a consultant psychologist, was tendered on behalf of the applicant. Ms Cidoni had interviewed the applicant via video conference on two occasions. Personality testing revealed that the applicant had low ego strength, and that he was immature, unreliable and egocentric. Intellectual testing revealed that his verbal comprehension was borderline (at 76 points) and that his working memory was average (at 92 points). Testing also demonstrated that he was a low risk of recidivism.
24 Ms Cidoni noted that the personality testing revealed that the applicant’s ability to cope with stressors was poor, and that he displayed immaturity, some irresponsibility and poor planning behaviour. In respect of the offending, the applicant had taken responsibility for his behaviour, and he fully understood that the offending was wrong. It was noted that his symptoms of anxiety were elevated, and that he also had mild elevation on the depression scale. Ms Cidoni expressed the view that continued imprisonment for the applicant at that stage of his life might only serve to place him on a ‘negative trajectory’ in view of his immaturity and impressionability.
25 In addition, character references, prepared by the applicant’s parents, his brother and his employer, were tendered. Each of those references noted that the applicant was particularly remorseful for his actions and the choices that he had made. The applicant’s parents stated that he was well aware that he had to change his circle of friends, and focus on his future. The applicant’s employer, Mr Browne, stated that he was a reliable employee with a keen desire to become a licensed roof plumber. He noted that the applicant was very remorseful for his actions, and that he had a good family support network.
26 By way of background, the applicant came from a stable and supportive family who lived in Ballarat. He attended Ballarat Secondary College and completed his education after Year 11. He then commenced a plumbing apprenticeship with Browne Brothers Roofing. In his reference, Mr Browne stated that he was willing to have the applicant return to his apprenticeship upon his release but also stated that he could not ‘keep this offer open forever’.
27 On the plea, it was submitted that the applicant had good prospects of rehabilitation, based on Ms Cidoni’s assessment that he was a low risk of recidivism, his lack of previous criminal history, his family support, the absence of any mental health or substance abuse issues, and the fact that he had employment available to him on release from custody. Counsel also submitted that the applicant’s plea of guilty should be regarded as being an early plea, which had utilitarian value, and which demonstrated his willingness to facilitate the course of justice. Accordingly, it was submitted that the judge ought to impose a sentence involving a combination of custody and a community correction order, and that any sentence of custody ought to be served within a youth justice centre.
Reasons for sentence
28 In her reasons for sentence, the judge noted that the disparity, between the age of the applicant and the ages of the victims, was less than the disparity in other cases.[7] However, her Honour noted, in that regard, that in Clarkson v The Queen[8] the Court of Appeal observed that even where the offender is youthful, and the age difference relatively small, the purpose of the statutory offence was to protect children against ‘the harms associated with premature sexual activity’. The judge also referred to the decision of the Court of Appeal of Western Australia in Simon v Western Australia,[9] in which the Court noted that the age difference between a 14 year old and an 18 year old is significant. Accordingly, the judge considered that the applicant’s moral culpability was not significantly reduced by the circumstance that there was not a substantial age disparity between himself and his victims.[10]
[7]Reasons [89].
[8](2011) 32 VR 361.
[9][2009] WASCA 10.
[10]Reasons [92].
29 The judge further noted that there were three victims of the offending. Although the offending did not involve a breach of trust, nevertheless it was blatant, ‘with complete disregard for [the applicant’s] obligations regarding underage sexual encounters for [the applicant’s] own sexual gratification’.[11] The judge also considered that the offending in respect of charge 2 was particularly serious. The applicant did not take the trouble to wear a condom, and as a result Samantha Hurst became pregnant, with catastrophic consequences for her life.
[11]Reasons [93].
30 The judge also considered that despite the applicant’s immaturity as discussed by Ms Cidoni, nevertheless he was aware that his offending was illegal, and he had put his own sexual desires above his obligations.[12]
[12]Reasons [99].
31 In mitigation, the judge took into account that the applicant had pleaded guilty at the earliest opportunity. The judge accepted that the pleas of guilty had utilitarian value, and that they reflected some remorse by the applicant.[13] She also took into account the applicant’s age and potential vulnerability in custody, and that the applicant had been held in a protection status up to the date of sentence. The judge accepted that any term of imprisonment would be harsher upon him in light of his immaturity and vulnerability. Her Honour considered that there was ‘at best guarded’ optimism regarding the applicant’s prospects for rehabilitation, in light of his awareness of the offending nature of his conduct at the time he committed the offences, and of his callous disregard for his victims.
[13]Reasons [46].
32 In order to be able to consider all the sentencing dispositions that were available, the judge, during the plea, arranged for the applicant to be assessed for suitability for a youth justice centre detention order. Her Honour did so based on the misconception of both the prosecution and those acting for the applicant, at the time, that a disposition by way of a youth justice centre detention order would be available provided the custodial sentence imposed on the applicant was no more than four years. However, subsequently, when the error was drawn to her Honour’s attention, and taking into account the nature and gravity of the offending, she concluded that detention for a period of three years or less would not adequately reflect all the relevant sentencing considerations, or sufficiently reflect the seriousness of the applicant’s offending.
Submissions
33 In support of the proposed ground of appeal, counsel for the applicant submitted that there were a number of mitigating circumstances to which the judge failed to give adequate weight. In particular, the applicant was young at the time of the offending, and he was immature for his age. He had no previous convictions. He was otherwise of good character. He had pleaded guilty at the earliest opportunity, and made admissions in two interviews. The applicant had expressed genuine remorse for his offending and he had accepted responsibility for what he had done. Ms Cidoni had assessed that the risk that he might commit another sexual offence was low. The applicant had good family support and a good work record.
34 Counsel further submitted that the age difference between the applicant and the three victims was substantially less than the disparity in ages that commonly is found in cases of this type. He further contended that, apart from the incidents of the pregnancy of Samantha Hurst, the offending in respect of each of the three victims was not attended by aggravating circumstances, which commonly accompany such offending, such as undue coercion, or the breach of a position of trust.
35 In the applicant’s written case, counsel also noted that the law required that the applicant be ordered to comply with the reporting obligations provided under the Sex Offenders Registration Act 2004 for the rest of his life, so that he would be required to live with the stigma of being a sex offender throughout his lifetime. In respect of that submission, we note, however, that s 5(2BC) of the Sentencing Act 1991 prohibits a court, that sentences an offender, from having regard to any consequences that may arise under the Sex Offenders Registration Act 2004 from the imposition of the sentence.
36 In those circumstances, it was submitted, giving proper weight to the principle of parsimony, the application of proper sentencing principles did not require the applicant to be imprisoned in an adult jail. In particular, in light of the applicant’s youth, and the absence of any previous convictions, his rehabilitation was a more important consideration than general deterrence. As a consequence, it was submitted, the judge erred by failing to impose either a combined sentence of incarceration with a community correction order, or, alternatively, an order that the applicant serve his sentence in a youth justice centre.
37 In response, counsel for the respondent contended that the judge was correct to regard the offending as serious, in light of a number of circumstances attaching to it. In particular, the offending in respect of charge 2 was serious. By deliberately having unprotected sex with a 13 year old victim, the applicant had created a lifelong burdensome consequence for her. The sentencing judge correctly identified that sexual offending, of the kind in question, was by its nature an act of violence. Counsel also contended that the judge was correct to consider that there was a significant difference between the ages of the victims on the one hand, and the age of the applicant, at the time of the offending. While the prosecution did not, on the plea, cavil with the submission made on behalf of the applicant that the judge should impose a sentence of detention in a youth justice centre, the judge was not required to impose such a sentence. Counsel for the respondent thus contended that having regard to the seriousness of the offending, and the maximum sentences prescribed by the legislation, the sentences imposed by the judge have not been demonstrated to be wholly outside the range of sentences available in the circumstances of the case.
Analysis
38 The sole ground of appeal, relied on in support of the application for leave, is that the individual sentences imposed on charges 1, 2 and 3, the orders for cumulation in respect of those charges, the total effective sentence, and the non-parole period, are each manifestly excessive. In order to succeed on that ground, the applicant must demonstrate that the sentences imposed on him were wholly outside the range of sentencing options available to the sentencing judge. In other words, the sentences, that are the subject of the application for leave to appeal, must be shown to be so excessive as to bespeak error by the judge in the exercise of the sentencing discretion, notwithstanding that no specific error may be identified in the reasons for sentence given by that judge.[14]
[14]Clarkson v The Queen (2011) 32 VR 361, 364 [89] (‘Clarkson’); DPP v Macarthur [2019] VSCA 71, [58].
39 The offending, constituted by charges 1, 2 and 3, was, of its nature, serious, as demonstrated by the prescribed maximum sentences for those offences. As this Court made clear in Clarkson v The Queen,[15] the prohibition, prescribed by statute, on sexual activity with a child under the age of 16 years, is designed to protect children from the harm caused by premature sexual activity, and, to that end, to protect them from their own immaturity. As a corollary to that proposition, the prohibition is designed to deter those who might contemplate engaging in sexual activity with a person who is under the age of 16 years.[16] In that respect, the Court noted that the prohibition reflects ‘… a long standing community consensus that it is not until the age of 16 that a child has the psychological maturity and decision making competence to agree to sexual activity’.[17]
[15](2011) 32 VR 361.
[16]Ibid 368 [26].
[17]Ibid 369 [28].
40 In Clarkson, the Court gave consideration to the question whether, in respect of such offences, consent given by the complainant who is under the age of 16, may be a mitigating factor. In essence, the Court considered that, of itself and without more, consent can never be a mitigating factor in the sentencing synthesis.[18] The Court stated:
[18]Ibid 364 [4].
In every case … the sentencing court will examine the circumstances of the offending in order to assess the gravity of the offence and the offender’s culpability. The court should never consider the child’s consent in isolation. Instead, the court will need to investigate the circumstances in which the consent came to be given.
…
Hence, the sentencing court will need to consider at least the following matters:
(a) the relative ages of the offender and the victim;
(b)whether the offender was in a position of trust or authority with respect to the victim which facilitated the commission of the offence;
(c)the situation of the victim, and the degree to which she/he was taken advantage of; and
(d)what the evidence shows about harm already suffered or likely to be suffered.[19]
[19]Ibid 372–3 [40], [42].
41 It was in that context that the Court, in Clarkson, gave consideration to the question of the relativity of the ages of the offender and the victim. In doing so, it referred to the decision of the Queensland Court of Appeal in R v MAN.[20] In that case, the Court considered that, in light of the relatively young age and vulnerability of the offender at the time of the offending, the circumstances disclosed a less serious degree of sexual exploitation of the two young victims than occurs in a case in which it is a mature adult male who acts in a predatory and clandestine way. In particular, in that case, the Court observed that there was ‘greater closeness in maturity, age and balance of power’ between the offender and the victims, so that the offending was ‘at the lower end of the range of seriousness’ for offences of that type.[21]
[20][2005] QCA 413.
[21]Ibid [25].
42 In Clarkson, the Court noted that, even where the offender is youthful and the age difference relatively small, the sentencing court should be astute to observe the legislative policy that children are to be protected against the harms associated with premature sexual activity.[22]
[22]Clarkson (2011) 32 VR 361, 375 [51].
43 In applying those principles, it is necessary to consider, first, the individual sentences that were imposed in respect of each three charges on the indictment.
44 At the time of the first offence, the applicant was 17 years of age. It is clear, from the evidence, that he was particularly immature for a young adolescent of that age. When Ms Cidoni assessed him two years later, he had already been in custody in an adult prison for some seven months. Notwithstanding his additional years, and the effect of imprisonment on him, he was still found to be immature in a number of relevant respects. At the time of the offending, the applicant was still a school student. He met the victim, Kristen Hamilton, at school. There is no suggestion that he exercised any untoward degree of power of persuasion, influence or coercion over Kristen. In that context, the circumstance, that the act of sexual penetration was by consent, is relevant to an assessment of the seriousness of the offending, and of the applicant’s subjective culpability for it, notwithstanding that that lack of consent does not excuse the commission by the applicant for the offence to which he pleaded guilty.
45 Further, it must be borne in mind that the offending, that was charged, constituted one single occasion in the context of the relationship between the applicant and Kristen. The three year difference in their ages — while not insignificant — was substantially less than the difference in ages which often is to be found in offences of this kind. There was no evidence that there was any harm to Kristen as a result of the offence, additional to the kind of harm discussed by this Court in Clarkson. It is clear, from the continued exchange of text messages between them, that the applicant and Kristen remained on friendly terms after the offence for which the applicant was sentenced.
46 The applicant had no previous convictions, and at the time of sentence, he had expressed his remorse for his offending. Each of those factors was a relevant and valid mitigating circumstance. As the applicant was 17 years of age at the time of the offending, the principle of general deterrence had limited (if any) application to the determination of the sentence to be imposed on him for the offence.[23]
[23]CNK v The Queen (2011) 32 VR 641, 643–5 [4]–[15]; cf Cairns v The Queen [2017] VSCA 333 [28]–[36].
47 Taking those matters into account, the sentence of 15 months’ imprisonment imposed on the applicant, for the offence that constituted charge 1, is plainly demonstrated to be well beyond the range of sentencing options that were available to the judge in the circumstances of this case. For the reasons we have outlined, we consider that a sentence of detention for a period of two months, for that offence, would adequately reflect the gravity of the offending and the applicant’s moral culpability for it, and would serve the purposes of specific deterrence and rehabilitation that are important aspects of the imposition of sentences on young persons. We add that we will not make any order for cumulation in respect of that sentence. If the applicant had been sentenced as a 17 year old on that charge alone, it is improbable that he would have received a custodial disposition in respect of it.
48 The offence, that was the subject of charge 2, was clearly much more serious than the offence that was the subject of charge 1, for a number of reasons. First, the age difference between the applicant and the victim, Samantha Hurst, was more substantial. Samantha was then 13 years of age, while the applicant was 18 years of age. At the time, Samantha was in the second year of her high school education, while the applicant had completed Year 11, and was employed as an apprentice plumber. Secondly, the offence, that was the subject of charge 2, comprised a course of conduct. According to the prosecutor’s opening, it occurred over a period of about six weeks between early July 2017 and 18 August 2017. As the trial judge correctly noted, s 5(2F) of the Sentencing Act requires the judge, in relation to such a charge, to impose a sentence that reflects the totality of the offending that constitutes the course of conduct charged. Thirdly, as an aggravating circumstance, during that period, the applicant engaged in sexual intercourse with the victim, Samantha, on about thirty occasions, and on each occasion he took no precautions at all to protect her from becoming pregnant. In light of the number of occasions upon which unprotected sexual penetration occurred, the course of conduct engaged in by the applicant involved a high risk of pregnancy to the victim. Fourthly, and as a consequence of that conduct, the victim fell pregnant. The profound and highly detrimental effects of that circumstance were well spelt out in the victim impact statements to which we have referred. The harm thus occasioned to the victim was a foreseeable consequence of the type of conduct in which the applicant engaged.
49 Each of those matters was relevant to a proper assessment of the gravity of the offending that was the subject of charge 2, and the moral culpability of the applicant for that offending. On the other hand, there were other factors which were required to be balanced in assessing those matters. In particular, again, the conduct engaged in by the applicant with the victim was entirely consensual. As was the case in respect of the first charge, there was no evidence of any degree of pressure, manipulation or predation involved in the conduct undertaken by the applicant. The larger age difference between the applicant and the victim — and the difference in their life circumstances, she being in the early years of her secondary education, and he being involved in the building trade as an apprentice plumber — necessarily diminished, but did not make irrelevant, the fact that each of the acts of sexual penetration was consensual. As noted, the applicant was a young offender, and he was immature. The gravity of the offending, and the degree of moral culpability for it, would have been materially more substantial if, on the other hand, the applicant were a mature and sophisticated 18 year old. Clearly he was not.
50 As already discussed, there were a number of extenuating circumstances which were common to each of the charges. The applicant was to be sentenced as a young offender. Although, in cases of this kind, the youth of the offender may not be accorded the same weight as in other cases,[24] nevertheless, his youth was an important factor in the sentencing synthesis.[25] The applicant had made an early plea of guilty, and he had no previous convictions. He was not given to the abuse of alcohol or illicit drugs. Apart from his offending, his lifestyle was otherwise entirely blameless. By the time that Ms Cidoni assessed him in May 2018, the applicant had already spent a period of some eight months in custody, and he had, it seems, readily ‘learnt his lesson’. He was assessed by her to be remorseful, which was a view shared by the applicant’s parents, brother and employer. Importantly and relevantly, at the time of sentence, the applicant needed to be held in protection while in an adult prison. The fact that that was necessary reflected the vulnerability of the applicant in the setting of an adult prison. Further, it was clear, at the time of sentencing, that any further period that the applicant was required to serve in an adult prison would need to be spent in similar circumstances. In those circumstances, any sentence of imprisonment imposed on the applicant would be more burdensome for him.
[24]DPP v Lawrence (2004) 10 VR 125, 132 (Batt JA); Azzopardi v The Queen (2011) 35 VR 43 [44].
[25]Cf Webster (a pseudonym) v The Queen [2016] VSCA 66 [6]–[10] (Maxwell P, Redlich JA).
51 Taking those matters into account, it is clear that the offending, that was the subject of charge 2, required the imposition of a period of custody that was sufficient to reflect the gravity of the offending, and to serve the important purposes of general deterrence, specific deterrence and denunciation. Nevertheless, giving full weight to those requirements of the sentencing process, it may readily be concluded that the sentence imposed on the applicant was particularly stern. The critical question is whether that sentence, in respect of charge 2, was manifestly excessive in accordance with the principles we have earlier set out.
52 After giving this matter careful consideration, we have concluded that the sentence, of 3 years and 6 months’ imprisonment, imposed on the applicant in respect of charge 2, was wholly outside the range of sentences available to the judge in all the circumstances of the case. At the risk of repetition, at the time of sentence, the applicant was 19 years of age. He had not been in any form of custody, before he was remanded in respect of the present matters in October 2017. The applicant, at the time of sentence, was an immature 19 year old, who was vulnerable in the setting of an adult prison. As Ms Cidoni observed, there was a realistic risk that a lengthy term of incarceration imposed on him in an adult prison, such as occurred in the present case, might be counterproductive to the rehabilitation of the applicant, and thus undermine the effect of any sentence that was imposed on him as a specific deterrent. Further, we do not consider that, in the circumstances of the case, a sentence of the magnitude of that imposed on the applicant was necessary to serve the purposes of general deterrence and denunciation.
53 Taking those matters into account, and giving full weight to the gravity of the offending and the applicant’s moral culpability for it, and bearing in mind the profound effect that the offending has had on the victim and her family, we consider that an appropriate, if not stern, sentence to be imposed on the applicant, in respect of charge 2, would be a sentence of two years and four months’ imprisonment.
54 We turn, then, to the sentence of two years’ imprisonment imposed by the judge in respect of charge 3. At the time of that offence, the applicant was 18 years of age, and his victim, Jessica Bennett, was 14 years of age. The applicant was then employed as an apprentice plumber, while, we assume, Jessica Bennett was still attending school. The offending occurred on the evening of the same day on which the applicant had been interviewed by police in respect of the offending that was the subject of charge 2. Thus, he was well aware that his conduct, in engaging in sexual intercourse with Jessica Bennett, was illegal.
55 Each of those matters was relevant to an assessment of the objective gravity of the offending and the applicant’s moral culpability. However, again, it is clear that the applicant was an immature 18 year old at the time. While that circumstance does not excuse the offending, it does differentiate the moral culpability of the applicant from that which might have been assessed if he had been a mature young man of the same age. Importantly, there is no evidence that he had sought to manipulate, importune or pressure Jessica Bennett to engage in sexual relations with him. While the applicant was four years older than Jessica — and given that she was only 14 years of age, that age difference was significant — nevertheless in light of the immaturity of the applicant, the fact that the conduct was entirely consensual is relevant to an assessment of the gravity of the offending and the applicant’s moral culpability. The offence, that was the subject of charge 3, comprised one incident. No evidence was adduced that demonstrated that the victim suffered any harm, or was likely to suffer any harm, additional to the kind of harm discussed by this Court in Clarkson.
56 In assessing the gravity of the offending, and the applicant’s moral culpability, in respect of charge 3, it is relevant that Jessica Bennett was the third under age victim with whom the applicant had sexual relations during the preceding period of approximately 18 months. That factor is relevant, because it indicates that the offending in respect of Jessica Bennett was not a ‘one off’ event. However, otherwise, it would not be appropriate to take that circumstance into account, since to do so might involve the imposition of double punishment on the applicant for his overall offending.[26]
[26]R v De Simoni (1981) 147 CLR 383, 389, 392 (Gibbs CJ); R v Newman & Turnbull [1997] 1 VR 146, 150–‘2 (Winneke P).
57 Taking those matters into account, it is clear that the conduct of the applicant, in committing the offence that was the subject of charge 3, required the imposition of a custodial sentence. However, giving full weight to the seriousness of the offending, nevertheless we are persuaded that the sentence of two years’ imprisonment imposed in respect of charge 3 was manifestly excessive. In our view, an appropriate sentence, reflecting the gravity of the offending, and serving the purposes of general deterrence, denunciation and specific deterrence, would comprise a sentence of imprisonment for a period of 12 months.
Summary of conclusions
58 For the foregoing reasons, we have concluded that the sentences imposed on charges 1, 2 and 3 on the indictment were manifestly excessive. In lieu of those sentences, we would sentence the applicant as follows:
Charge 1 — 2 months’ imprisonment.
Charge 2— 2 years and 4 months’ imprisonment.
Charge 3— 12 months’ imprisonment.
59 We would direct that four months of the sentence imposed on charge 3, be served cumulatively on the sentence imposed on charge 2, but that there be no order for cumulation in respect of the sentence imposed on charge 1. We would otherwise confirm the sentences imposed by the primary judge on the related summary offences (which were not the subject of appeal).
60 Accordingly, the applicant will be re-sentenced to a total effective sentence of 2 years 10 months and 21 days’ imprisonment. We would fix a period of one year and nine months before the applicant is eligible to be released on parole.
61 In light of the nature and length of the custodial sentence, that we have concluded was appropriate in this case, the Court raised, in the course of argument, whether counsel for the applicant contended that the Court ought to obtain a report as to the applicant’s suitability for a disposition involving service of the residue of the period of incarceration in a youth justice centre. In response, counsel submitted that it would be more appropriate, at this stage, if that decision were left to the Adult Parole Board pursuant to its power, under s 471 of the Children Youth and Families Act 2005, to direct that the applicant be transferred to a youth justice centre. While, under s 471, it is a matter for the Adult Parole Board to decide whether it is in the interests of the applicant that he be transferred to a youth justice centre, we would respectfully endorse the making of any such decision by the Board in order to enhance the prospects of the successful rehabilitation of the applicant into the community upon his release from custody.
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