Director of Public Prosecutions v Adams
[2011] VCC 907
•1 July 2011
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-02309
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW ADAMS |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 June 2011 | |
DATE OF SENTENCE: | 1 July 2011 | |
CASE MAY BE CITED AS: | DPP v Adams | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 907 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty - Sexual penetration of a child under 16 years - Defence and Crown agreed on disposition
Sentence:Community Based Order – Sex Offender Registration
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A Moore | Solicitor for Office Public Prosecutions |
| For the Accused | Mr Rolfe | Nicolas J. Rolfe & Associates |
The name of the victim has been initialised to maintain her privacy.
HER HONOUR:
1 Matthew Adams, you have pleaded guilty to one charge of sexual penetration of a child under the age of sixteen years for which the maximum penalty is ten years' imprisonment. As the maximum penalty reflects, the Parliament of this State regards this offending as most serious.
2 The circumstances of your offending were opened as follows.
3 You were eighteen years of age at the time of the offending and you were residing in Kyabram.
4 The victim in this matter, who I will refer to as TMC, was born on 16 October 1996 and was thirteen years of age at the time of the incident.
5 At about 11:45 pm on 20 August 2010, TMC “snuck” out of her home at Rushworth in the company of friends, EM and SG. EM was fifteen years old and SG was sixteen years old.
6 Arrangements had been made by SG, for RO and SA who were both friends of SG's and of yours, to pick them up down the road from TMC’s house and take them to your house. TMC’s parents and sister were asleep and did not know that she had left the premises.
7 When the group first arrived at your house there was no-one there so RO drove to an hotel and collected you and SA.
8 At your home, the group drank beer and cruisers in front of an open fire in the back yard. During conversation TMC stated that she was fifteen years of age and you believed her. TMC stated that she had told the group her age but she was not sure whether you had heard what she said as this was said in the car on the way to the house (See Q329 – 339 Page 36).
9 This was the first time TMC had met any of the boys that were at the house that night (See Q321 VATE Pg 34).
10 TMC had a good deal to drink (See Q82 VATE Pg 9).
11 During this time, your parents, or at least your mother, came home and went to bed.
12 You and the rest of the group then went into the house to watch a DVD called “Skins”. Whilst watching the DVD, you were kissing TMC.
13 You and TMC then went to your bedroom where you “ended up having sex” (See Q77, Q97 and Q128 VATE Pgs 8 - 14). TMC stated in her VATE interview “It hurt a little bit” (See Q148 VATE Pg 16). She then told you to stop because, to quote her, she “was sobering up and wanted to go home” (See Q163 VATE Pg 17), and you stopped.
14 You and the victim returned to the living room about forty five minutes to an hour later.
15 The three girls left the house at approximately 5:30 am and SA walked them to a phone box to call a taxi and then gave them $60.00 for the taxi. When they were on the way to the phone booth near the skate park, TMC told the other girls that she had had sex with you.
16 On arriving home, TMC’s mother was in the kitchen and she told her that they had been outside looking for the battery for SGs phone, rather than telling her that they had left the house the previous evening.
17 TMC was worried the next day that you had not used a condom but did not know this for sure (See Q 185 VATE Pg 19).
18 On Monday 30 August 2010, TMC’s sister showed her mother photographs of TMC that had been posted on Facebook which had been taken during the evening at your house. TMC’s mother then arranged to see EM’s parents regarding the evening and the fact that they had “snuck” out and consumed alcohol. During that meeting, TMC told her mother that she had had sexual intercourse with you that night. Her mother then asked EM’s father, a police officer, to contact the “authorities” as she wanted to make a complaint.
19 Police then attended the complainant’s house and a formal complaint was made.
20 On Wednesday 1 September, a VATE was conducted with TMC and she told the police that she had had sexual intercourse with you.
21 Following a phone request by the police you attended the local Police Station at 1:00 pm on Tuesday 21 September 2010.
Record of Interview
22 At about 1:15 pm that day you were interviewed and said the following:
23 Q36 – 38: You did not know how old TMC was until you got to your house and then she told you she was fifteen years old.
24 Q61: You were a little bit drunk but were still, (if I understand it, to quote you) "you were still doing pretty good."
25 Q87 – 90: You thought TMC was fifteen years old but knew now she was thirteen as SA had told you after the girls had left.
26 Q101: You were a little bit surprised and confused when you were told TMC’s age.
27 Q128 - 137: You knew that it was wrong to have sexual intercourse with a fifteen year old as you had been taught at school.
28 Q141: You asked her if she had had sex before and she said “No” so you asked if she wanted to and she said “Yes”.
29 Q155: You could not get her jeans off so she took them off.
30 Q160 – 165: You agreed that you’d had sexual intercourse with her.
31 Q166: You stated that you knew it was wrong but didn’t think it was wrong as you were under the impression that she was closer to the legal age.
32 Q183: You confirmed that the sexual intercourse was consensual and that no force had been placed upon TMC during the act of intercourse.
33 At approximately 5:48 pm the interview was concluded.
34 Mr Adams, an aggravating feature of your offending is that you engaged in unprotected sex with your victim, exposing her to the risk of pregnancy and sexually transmitted diseases. When I raised this matter with your counsel, Mr Rolfe indicated that when people drink that this is the sort of thing that happens. Let me make it very clear to you Mr Adams; criminal offences like this do not just happen. People, such as you, decide to make them happen.
35 Notwithstanding that TMC did not wish to make a Victim Impact Statement in this matter, you should know that the impact upon a young person such as TMC can be profound, notwithstanding that she may have initially consented to this conduct. The reason for this is, that unlike you, she was a child.
36 Even in circumstances where you believed she was fifteen years of age, you as the adult, and knowing that you were acting against the law, ought to have exercised restraint and behaved responsibly. You have failed to do this. It is unacceptable to seek to justify your actions in terms of TMC consenting to them for the reasons I have previously outlined.
37 As I have said, Parliament regards this offence as most serious. The reason for this is because it is committed against children. Children, like TMC, are not regarded as having the abilities that someone at your age and stage has in terms of making responsible decisions, and so it is for adults such as you to behave responsibly. On the occasion of this offending, you have failed to do that. I should tell you, Mr Adams, that in many cases where this offence has been committed, the offender goes to gaol. The reason for this is that judges need to send a strong message to the community that behaviour such as yours will not be tolerated.
38 It is apparent that alcohol has played some part in your offending on this occasion. Your mother gave some evidence on your behalf. She said that you have had some difficulty controlling your alcohol intake until fairly recently. You ought realise that as alcohol is a disinhibiter, you are more likely to commit offences of the type to which you have pleaded guilty if you are affected by alcohol.
39 If you are not aware of the part that alcohol played in your offending against TMC already, you are now on notice that if there is any offending on your part in the future whilst you are affected by alcohol, the fact that you have chosen to consume alcohol on the occasion of any future offending, may well be treated as an aggravating feature by the sentencing judge and expose you to a higher penalty than what you would otherwise receive.
40 In your favour, once TMC indicated that she wished to stop engaging in sexual intercourse, you desisted straight away. It is also in your favour that you were fully co-operative with the police and pleaded guilty to this offence at a very early stage. In those circumstances, you are entitled to a significant discount in the penalty that you would otherwise receive, as you have saved the witnesses, particularly TMC, the time, trouble and trauma of coming to Court to give evidence, and you have saved the community the time and expense of contesting such proceedings.
41 In this regard, I have taken into account the character references which were tendered on your behalf and I have also taken into account the troubled upbringing which you have experienced. You are indeed fortunate to have a most supportive mother who came to Court to vouch for your otherwise good character and you owe it to her and to yourself to behave yourself in future.
42 You only have one prior matter which I was told by the learned prosecutor has no real relevance. I am of the view that it does have some relevance in that on 5 July 2010, you were convicted and discharged in relation to entering a private place without lawful excuse and consuming alcohol when under the age of eighteen years and possessing liquor when under the age of eighteen years. In addition to your mother’s evidence that alcohol has been something that you have tended to abuse from time to time, your risk of re-offending would appear to be tied up with your decision not to abuse alcohol in the future.
43 Conduct such as yours warrants just punishment and denunciation. However, in your case, I am of the view that you have good prospects of rehabilitation and regard this offending as (hopefully) a one-off. However, I must impose a penalty that will deter others from behaving as you have.
44 It would appear from your mother’s evidence that you were quite a good student but unfortunately left Year 12 halfway through in order to earn some “pocket money” by milking cows. You now have a job with an engineering company in Shepparton and have had four different jobs since committing the offence. You have applied to join the Air Force and are due for a second interview once you have completed an application form and the necessary paperwork has been attended to. You are from a family of four children and you were unfortunately subjected to the sight and experience of your father’s emotional abuse which has ultimately resulted in you having no contact with him.
45 As you have managed to reach the age of nineteen years with a meagre criminal history, and in light of the character evidence which shows that you usually have much to recommend you, I am of the view that a community-based order with conviction is an appropriate disposition in your case. However, as I have been provided with very little material as to your level of insight into your offending and in particular in respect of your alcohol abuse on occasion, I am going to impose some conditions which ensure that you are counselled and monitored in relation to your alcohol intake and sexual offending; hopefully, you will learn some strategies in respect of behaving more responsibly in future.
46 As I have said, I intend to release you upon a community-based order (CBO). So that you might provide an informed consent, I need to explain to you what is proposed with the CBO.
47 Could you stand up Mr Adams.
48 It is proposed that on count 1 that you be convicted and released on a CBO for a period of two years which will date from today. There are core conditions which attach to every Community based order and in your case, there will also be some program conditions. You need to listen to what these are, because I cannot release you on the CBO unless you consent to them.
49 The core conditions are as follows. The first is that you must not commit, whether in or outside Victoria during the period of the order, another offence punishable on conviction by imprisonment. Next, you must report to Shepparton Community Correctional Services 307-331 Wyndham Street Shepparton on Monday 4th July 2011 at 4pm. Next, you must report to and receive visits from a community corrections officer. Next, you must notify an officer at the specified community corrections centre of any change of address or employment within two clear working days after the change. Next, you may not leave Victoria except with the permission of an officer at the specified community corrections centre granted either generally or in relation to the particular case. Finally, you must obey all lawful instructions and directions of community corrections officers.
50 As I said, there will also be program conditions. They are that you perform 250 hours of community work over a two year period as directed by the Regional Manager. You must be under the supervision of a community corrections officer. You must undergo assessment and treatment for alcohol or drug addiction or submit to medical, psychological or psychiatric assessment and treatment as directed by the Regional Manager. You must also undergo referral to the Sex offender program and participate in the program as directed by the Community Corrections Officer. Now do you understand the core and programme conditions that I have set out Mr Adams?
51 OFFENDER: Yes.
52 HER HONOUR: You should also understand there may be serious consequences for you if you fail to comply with this order. If over the next 2 years, you fail without reasonable excuse to comply with any of the conditions of the Community Based Order as I have explained them to you, or with any requirement of the relevant regulations, you may be charged with an offence of breaching the Community Based Order. The breach could be because you have failed to comply with an administrative requirement of the order, for example: not attending for supervision or assessment or treatment programs or failing to turn up for community work; or it may be breached by you committing other offences punishable on conviction by imprisonment.
53 The breaching charge can be laid anytime within 3 years of the date on which the breaching conduct occurred. You will be brought back to this Court and if the Court finds you guilty of the breaching offence, it can fine you and in addition, vary, confirm or cancel the Community Based Order. If the Community Based Order is cancelled, the Court can deal with you for this original offence as if from the beginning again. If that were to happen you may then face an immediate gaol term. Do you understand all of what might happen to you if you breach the Community Based Order?
54 OFFENDER: Yes.
55 HER HONOUR: Are you willing to enter into the Community Based Order?
56 OFFENDER: Yes.
Sentence
57 On Count 1 you are convicted and released on a Community-based order, the terms and conditions of which I have already set out.
58 In the circumstances of your case, I am not satisfied that a forensic sample order is warranted, notwithstanding that your offending is serious. You have not committed sexual offences in the past and I do not regard it as being in the public interest for such an order to be made.
59 Under the Sex Offenders Registration Act 2004, by reason of your conviction of this offence, you are to be recorded as a registrable offender for fifteen years. You must report your personal details to the Chief Commissioner of Police annually for the next fifteen years. You must first do so, that is, report such details within twenty-eight days of today’s date, at the police station nearest to your home. Details in writing of these reporting conditions will be served shortly upon you by my associate. I will ask your counsel to attend to an acknowledgment of that notice and have you sign it.
60 Once you have signed the notice, and the community-based order, and I sign those orders, you will be free to go.
61 You may come out of the dock so that, with the assistance of your counsel, you can sign the Community Based Order. I will hand down the orders for signature. [Offender signs first, judge signs second.]
[CBO signed and acknowledged by offender]62
63 HER HONOUR: Thank you. I have signed the Community Based order and you are now free to leave the court.
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