Director of Public Prosecutions v Adams

[2015] VCC 226

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-02087

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES ROBERT MILLER ADAMS

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	24 February 2015
DATE OF SENTENCE:	24 February 2015
CASE MAY BE CITED AS:	DPP v Adams
MEDIUM NEUTRAL CITATION:	[2015] VCC 226

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C.M. Burnside
For the Offender	Mr G. Henderson

HIS HONOUR: 

1James Robert Miller Adams, you have pleaded guilty to an indictment charging you with committing an indecent act with or in the presence of a child under the age of 16, three offences of taking part in an act of sexual penetration with the same child under the age of 16 and one offence of possessing a drug of dependence, namely cannabis-L.  The indictment expresses each of those offences to have taken place between 2 May and 6 May 2014. 

2The prosecution relies in each case upon other acts, said to be uncharged acts, and puts the case in relation to Charges 1-4 on the basis that the charge on the indictment is a representative charge of the conduct encompassed by the similar acts said to have taken place on other occasions and set out more fully in the summary of prosecution opening and the appendix thereto.

3You have also admitted a related summary offence, namely possessing cartridge ammunition, whilst not the holder of a licence under the Firearms Act or a permit under s.58A. 

4You admitted a prior court appearance which involved an appearance on 17 April 2013 at the Sunshine Magistrates' Court, where you were convicted of a number of offences, including possessing cannabis, including storing unlicensed ammunition in an insecure manner and possessing an unregistered category A long arm and failing to store that correctly.  There were other offences, including use of cannabis which are not totally irrelevant so far as this offending conduct is concerned, however, I note that you have no prior convictions for any offence involving sexual offending.

5The prosecution tendered and relied upon a summary prosecution opening, which is Exhibit A.  That was read this morning and, as I understand it, it substantially sets out the facts that are agreed as to the circumstances in which the offending occurred and the context in which the offending conduct occurred.

6There seem to be two exceptions to that, both of which I was alerted to when the court first sat this morning.  They arise as follows.  In paragraph 7 of the prosecution summary of opening, it is alleged that you initiated contact with the victim through the online messaging application KIK and associated application Hey Hey and that you sent a message to the effect that you were a 17 year old male from Australia and the victim responded that she was 15 and sent you a photograph.  That seems to be in dispute, at least as to the message in response from the victim to the effect that she was aged 15.  It was at that stage indicated to me that your counsel may seek to rely upon a document which indicated that the victim had sent you a message to the effect that she was a 17 year old female rather than a 15 year old female.

7I indicated at that stage and I think on more than one occasion thereafter, that in my opinion, based on what I was told at that time, it mattered little if you were ultimately going to plead guilty to the offences.   Because the assertion upon initial contact by the victim that she was 17 years old would not have afforded you a defence and would not have been inconsistent with the plea of guilty. 

8The offences, the subject of Charges 1-4 on the indictment are of a kind where consent is no defence, except in certain circumstances.  There is no doubt, on the material before me, that each of the sexual acts were committed with consent.  However the fact of consent is no defence to either the offence of taking part in an indecent act with a child in relation to Charge 1 or the offences of sexual penetration in relation to Charges 2, 3 and 4. 

9It would however be a defence if the perpetrator was able to demonstrate on the balance of probabilities that he believed on reasonable grounds that at the time of the acts said to constitute the offences the victim was 16 years of age or older.  It has not been suggested that you have such a defence and for that reason I indicated that it did not seem to me of any or any significant relevance to prove one way or the other whether the document sought to be relied upon accurately reflected the response of the victim or not.  It was on that basis that the matter proceeded.  Indeed, during the course of the plea hearing Mr Henderson indicated that on the strength of my indication as to my attitude to the relevance or lack of significance of that document, or the potential lack of significance, he would not seek to rely upon it.

10It was made clear on your behalf during the course of the plea, that whatever your beliefs were at the outset,the position that you believed on reasonable grounds that she was under the age of 16 years for any or any significant period thereafter and more particularly at the time of the sexual acts the subject of Charges 1-4 could not be sustained.

11The other matter contained in the summary prosecution opening which I was told was the subject of dispute arose from paragraph 14, where the paragraph asserts the victim and defender shared the joint.  The victim had approximately 10-20 puffs of the joint and the offender threw the butt of the joint out the window.  Again, it was apparent that it was not in dispute that you had taken pot, marijuana, cannabis to the location to the meeting with the victim that night, by arrangement, and in order to smoke it with her. 

12I indicated that it did not seem to me to be of any significance in those circumstances whether or not she actually consumed any of the marijuana.  It did not seem therefore of any significance to sentencing for that disputed fact to be resolved by the calling of evidence.  Counsel on both sides accepted that position and the matter proceeded upon the basis of the facts set out in Exhibit A, subject to those qualifications.

13I proceed on the basis that the factual situation set out in Exhibit A is accurate, save that I proceed on the basis that you at least may have been, and I would be prepared to accept for the present sentencing purposes, that on the balance of probabilities you initially thought that the victim was 17 years of age.  However, it seems to me to be plain that by the time the offending conduct occurred you realized that that was not so and that she was younger. 

14The way in which the arrangements between you were made, the fact that, as I am told by your counsel, you became aware that she was vulnerable in the sense that she had been cutting herself and was in a situation of emotional turmoil, along with the arrangements whereby you were to pick her up outside her home in the dead of night, surreptitiously, in the knowledge that her parents would not be aware that she was leaving the house and that you would be returning her in a way that enabled her to get back into the house without alerting her parents and that was repeated on the second occasion.  There could not in those circumstances have been any doubt in your mind that you were dealing with a person who was under the age of 16 years and it has not been suggested otherwise.

15The consumption or otherwise of marijuana again does not seem to me to be a matter of any significance.  It is plain that you took marijuana along there by arrangement with the young lady and expected to consume it with her.  Whether you did or not is neither here nor there.  Certainly I do not proceed to sentence on the basis that I can be satisfied beyond reasonable doubt, despite the evidence of the DNA of the victim on a cigarette butt recovered from the vicinity in which the offending took place, I cannot be satisfied beyond reasonable doubt that she consumed any of the marijuana.  Indeed, I was informed the toxicology report suggested that there was no marijuana in her system.  Be that as it may, it does not seem to me to be a matter of any significance in the sentencing and I do not regard it as such.

16The prosecution drew my attention to a number of features of the offending conduct which are of significance and do aggravate the offending conduct.  One of course is the age gap which is about 16 years or thereabouts between your age and that of the victim.  The fact that you initiated contact with the victim on the internet and used the internet for the purpose of grooming the victim in a way that was insidious.  You lied to the victim about your age.  The precise degree of your lying about your age is not clear, but lie you clearly did.  The purpose of that lie was to insinuate yourself into her life in a way that would enable you to exploit your contact with her for your own sexual gratification.  I have got no doubt at all about that.  Otherwise it would not have been necessary for you to tell her lies.

17You were aware that she was vulnerable and you took advantage of that.  You did take marijuana to the meeting with a view to sharing it with her.  Of particular significance, in relation to Charge 4, on the first occasion, 3 May, when you engaged in penile-vaginal intercourse, you did so without a condom and you ejaculated inside her, placing her at risk of pregnancy and at risk of her contracting a sexually transmitted disease of one kind or another.  That she escaped pregnancy and sexually transmitted disease is fortunate, but the fact that you engaged in unprotected sex of that kind with her is a significant aggravating feature.

18You have pleaded guilty at an early opportunity.   You are entitled to full credit for that and that is consistent with you being remorseful.  There is other evidence of you showing remorse.  Evidence was presented to me, not least by Mr Steven, to the effect that you have expressed remorse and that you have shown signs that you are genuinely remorseful and I accept that you are.  I accept that you have read and understand the nature of the harm that you have done to your victim emotionally, psychologically and that harm is quite graphically illustrated by the victim impact statement provided by the victim's mother, which is part of Exhibit B on the plea hearing.

19You are entitled also to the mitigation to be derived from the utilitarian value of the plea, in that it saved the court the cost of a trial, the witnesses the inconvenience of attending and, in particular, the victim the anguish of having to give evidence either at the committal proceeding, or at the trial, or both.  That is very much to your credit and I give you full discount for your plea of guilty and indeed I give you full credit for the remorse that you have shown.

20I am bound, as you are probably aware, to take into account the victim impact statement.  Unfortunately it is the case that conduct such as this involving children, a 15 year old in this case, very often does have far reaching consequences.  There is no victim impact statement from the victim herself, but I am entitled to and do take into account what the mother says about her ongoing problems.  It may be that she had problems and, indeed, it is accepted that she had problems to your knowledge prior to the offending and that by no means can all of her problems be laid at your door.   But it is I think to be inferred that your conduct has significantly aggravated the emotional problems that she already had and I am bound to take all that into account.

21It is unfortunate that you did not make a clean breast of it with the police when you were arrested and that you obfuscated for some time.  Nevertheless, as I have indicated, you are entitled to full credit for your plea of guilty.

22Turning to matters personal to you, you are 31 years of age, not far off 32 now.  You led something of an itinerant life, as I understand it, early and therefore your education was somewhat interrupted.  Nevertheless you have had a good work record, quite a lot of the time working with your father.   You led, up until at least 2013, an unblemished life and a productive life.  You were married at a young age but unfortunately that did not last.  More recently you have used internet dating sites for purposes of meeting members of the opposite sex. 

23You were presented by your counsel as a simple man from an honest hardworking family and you are fortunate to enjoy the continuing support of your family who are here today, your parents and brother and friends as well, including of course Mr Steven who gave evidence on your behalf.

24I was provided with references in Exhibit 1, from Jade Simms, from Theresa Pace and from Robert Stereo and also from Ruby and Mark Western, all of whom speak well of you and support the proposition that you are remorseful and showing signs of depression, which was Mr Steven's diagnosis, albeit a tentative diagnosis.

25The duty of this court is to have proper regard to a number of different sentencing principles.  One is to denounce the offending conduct.  Another is to punish you justly for what you have done.  Yet another is to deter you from committing further offences.  I do not regard that as being of particular significance, you have got up to now without committing any sexual offences.  Although you have been dabbling in cannabis and fallen foul of the firearms law, those pale into insignificance compared with the sexual offending conduct.  I would hope that you have learned already a very stern lesson from your appearance in this court.  I would not regard individual deterrence as being a particularly significant sentencing consideration.

26However, general deterrence, that is deterring other people is a significant sentencing consideration and it is important, as Ms Burnside pointed out in her submissions, that young people, children under the age of 16 years are protected by the law.  They may be willing participants, but they are to be protected from themselves.   They are also to be protected from the vulnerability of using the internet.  There is a vulnerability because there are people who go online for the purposes of meeting persons regardless of age and exploiting the friendship that they develop through that contact.  You, unfortunately, were one of those who did exploit that.  Deterrent sentences must therefore be imposed.  The internet is a wonderful tool, but is every parent's nightmare when they have got teenage or younger children, because frequently those children depend upon the internet for their education and they therefore make themselves vulnerable to having contact with persons who might do them harm.

27As Ms Burnside pointed out, the courts have recognized that there is a particular vulnerability which needs to be addressed by the courts and she drew my attention to the case of Clarkson v R and EJA v R [2011] VSCA 157, in particular a passage quoted from the New South Wales decision in Dagwell which is set out at paragraph 66 of the judgment of the Court of Appeal in Victoria.

28Apart from all of those sentencing considerations, I am also bound to give proper consideration to promoting your rehabilitation.  I have no reason to doubt that with the support of your family and friends that you will be able to get back into the workforce, that you will work and that you will do your best to repair the damage you have done to your own life in engaging in this conduct and that you will build bridges with your family and your friends and that you will not offend again in the future.   I treat you therefore as a good candidate for rehabilitation and I intend to take that into account in the sentence that I select.

29Your counsel submitted that I should consider a suspended sentence.  I think it is agreed that I have no power to impose a suspended sentence.  I might say that I would not have regarded a suspended sentence as being an appropriate disposition in this case in any event.  This is a case which is of a kind and the facts in this case support the contention that an immediate custodial sentence is required.  No other sentence is, in my judgment, appropriate.  That said, I am conscious that you are still a relatively young man with a good deal of life ahead of you.  I want therefore to give you a decent chance of getting back to your life within a reasonable period of time and continuing with your rehabilitation.

30I was asked to consider perhaps imposing a term of imprisonment and coupling that with a community corrections order.  I do not accept that that is appropriate in this case.  It seems to me that a sentence greater than that which I would be able to impose with a community corrections order is the only appropriate sentence, having regard to the need to punish you adequately and in particular to send the message loud and clear to others who might wish to engage in conduct of this kind that the courts will not tolerate it.  I am therefore ready to impose sentence upon you.

31On Charge 1, of committing an indecent act with or in the presence of a child under the age of 16, I convict you and sentence you to imprisonment for a period of two years and three months.

32On Charge 2, of taking part in an act of sexual penetration of a child under the age of 16 years, I convict you and sentence you to imprisonment for a period of two years and six months.

33On Charge 3, of taking part in an act of sexual penetration with a child under the age of 16 years, I convict you and sentence you to imprisonment for a period of two years and six months.  I sentence you on that as a serious sex offender.

34On Charge 4, of taking part in an act of sexual penetration with a child under the age of 16 years, I convict you and sentence you to imprisonment for a period of three years.  I deal with you on that charge as a serious sex offender.

35On Charge 5, of possessing cannabis, I convict you and sentence you to a fine of $100.

36On the related summary offence, of possessing ammunition, unregistered, I convict you and sentence you to a fine of $900.

37I order that all of those sentences are to run concurrently.  The total effective sentence is therefore three years' imprisonment with a non-parole period of two years.

38But for you pleas of guilty, I would have sentenced you to imprisonment for a period of four years with a non-parole period of three years.

39I make the orders for forfeiture and disposal in accordance with the drafts with which I have been supplied.

40Before you go, I note that you are to be placed on the sex offenders register for a period of 15 years and you will be supplied with a notification of your reporting obligations under that legislation.

41Wait.  Sit down please.  Court officer please just wait.  Hold on there is a document that is just coming up to you.

42(Sex offenders registration signed and acknowledged.)

43(Forfeiture order signed and acknowledged.)

44(Disposal order signed and acknowledged.)

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