Director of Public Prosecutions v Ackerschott

[2014] VCC 555

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT BENDIGO
CRIMINAL JURISDICTION

CR-13-02396

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES ACKERSCHOTT

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Bendigo
DATE OF HEARING:	4 April 2014
DATE OF SENTENCE:	11 April 2014
CASE MAY BE CITED AS:	DPP v Ackerschott
MEDIUM NEUTRAL CITATION:	[2014] VCC 555

REASONS FOR SENTENCE
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Subject: Criminal Law - sentence          

Catchwords: Sexual penetration of child under 16; girl aged 14, offender aged 18 at time of offence; pleaded guilty; young offender (aged 20); no criminal history, 4^th Year apprentice, lives with parents, no drug or alcohol issues; offender and victim part of group of friends; sexual intercourse on one occasion only;

Sentence:      Community Corrections Order  - 18 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Jones	OPP
For the Offender	Mr A. McLennan	VLA

HER HONOUR: 

1James Ackerschott, you have pleaded guilty to one charge of sexual penetration with a child under the age of 16.  The complainant was aged 14 and you were aged 18 at the time.  You met through friends in about August 2012 and began communicating through Facebook, and by these means, you knew how old she was and what year she was in at school.  You met regularly in the company of other friends and there was a mutual attraction between you.

2About two months after you met, in December 2012, you were with her and several other friends at your home.  After some time, the other friends left, leaving you alone with the complainant in your bedroom.  You watched television for about an hour and then you had protected sex with her.  She consented, but of course, being a child, such consent is no defence to this charge.  Your relationship was similar to that of boyfriend and girlfriend, but she was too young and it went too far. 

3In June 2013, the complainant's mother found out about this and it was reported to the police.  The complainant did not pursue the charge at that time, but changed her mind and made a statement about two months later.  You were interviewed by the police and admitted the allegation.  You told police you knew how old the complainant was and that it was wrong to have sex with her. 

4You are now aged 20 and in the fourth year of a plumbing apprenticeship with your father.  You left school after Year 9 and began working with your father before commencing the apprenticeship.  You have never been in trouble with the police before and there are no behavioural issues or antisocial attitudes.  You are a law-abiding and hardworking young man living at home with your parents and sister.

5The girl and her mother have provided victim impact statements in which they describe how this has affected them.  The girl had not understood that it was an offence for you to have sex with her.  She had told her friends and the matter became public, resulting later in her being bullied and having to move to another school.  It seems to have had an impact on her home life as well, causing friction between her and her parents.  She said she realised she had made a silly mistake.  At this point, I will add that although she herself told others what happened, it is not necessary that I identify her by using her name in these sentencing remarks. 

6Her mother considered that she had failed her daughter and following the tension in the family, she had to seek counselling.  Her final comment in her statement to the court was, "I don't blame James because it takes two, but he needs to understand that it's wrong."  You have expressed your regret about it and you are sorry that it had such an impact upon the girl and her family.  Remorse is an important factor and in your case, a further indication of it is your plea of guilty.  You are entitled to a discount on your sentence for that plea because, apart from the remorse it indicates, it has also avoided the need for a trial, and for the girl and her mother to give evidence. 

7The charge to which you have pleaded guilty is a serious charge because it is intended to protect vulnerable children and young people from exploitation when they are too young to make proper decisions about sexual matters.  However, in this particular case, the circumstances surrounding it place it at the lower end of the range of seriousness.  Although general deterrence is an important factor to be taken into account in sentencing you, I must also take into account that you were very young at the time and you are still a young man.  That factor is more important than the need for general deterrence in the circumstances of this case.

8There is every indication that you have very good prospects for rehabilitation and it is unlikely that you will offend again.  Will you stand now please, Mr Ackerschott?

9As you know, you have been assessed as suitable for a community corrections order and that is an appropriate punishment.  It will have a number of onerous conditions and that is sufficient to send a message to the wider community that the court sternly disapproves of such behaviour and that it always deserves suitable punishment.  It will begin today and will last for 18 months. 

10You must attend the Bendigo Community Corrections Office at 18‑20 St Andrews Avenue by 4 pm on 15 April.  You will be under supervision and you will have to perform 80 hours of unpaid community work and attend and take part in a sex offender's program.  Under the Sex Offenders Registration Act you must report your details to the police every year for 15 years.  That is a mandatory order over which I have no discretion. 

11The prosecution is seeking an order for a forensic sample of saliva to be obtained from you and you have consented to that through your counsel.  I make that order and only need to advise you that the police have the power to use reasonable force to obtain the sample, but I trust that will not be necessary. 

12If you had pleaded not guilty to these charges I would have sentenced you to a community corrections order for two years with 120 hours of unpaid work. 

13Now I will hand the community corrections order to your counsel for him to have a look at and then I will ask you to sign it.  It is all in order.  Anything further? Mr McLennan, Mr Jones?

14MR JONES:  Nothing further, Your Honour. 

15MR MCLENNAN:  No, Your Honour. 

16HER HONOUR:  Thank you. 

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