Director of Public Prosecutions v Adkins

[2022] VCC 979

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-21-02245

DIRECTOR OF PUBLIC PROSECUTIONS

v

JIM ADKINS

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	3 May 2022, 17 June 2022
DATE OF SENTENCE:	17 June 2022, 21 June 2022
CASE MAY BE CITED AS:	DPP v Adkins
MEDIUM NEUTRAL CITATION:	[2022] VCC 979

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence – Sexual penetration of a child aged under 16 – Guilty plea entered during committal hearing – Offender aged 21 – Victim aged 15 – six year age gap – Breach of trust – multiple acts over 6 month period – condom not used – deterrence, denunciation and just punishment important considerations – No criminal history – Offender subsequently suffered injury to wrists  in motor bike accident – Additional delay due to surgery – forensically assessed as low/moderate risk of sexual reoffending – Willingness to participate in sex offender rehabilitation programs – Prospects for rehabilitation good but guarded – Serious Sexual Offender – Class 1 registrable offences

Legislation Cited:      Sentencing Act 1991 (Vic) – Sex Offenders Registration Act  2004 (Vic)

Cases Cited:Rose (A Pseudonym) v The Queen [2022] VSCA 112; Clarkson v The Queen; E J A v The Queen [2011] VSCA 157; Worboyes v The Queen [2021] VSCA 169

Sentence:                  Total effective sentence of 2 years 9 months’ imprisonment, non-parole period of 1 year and 3 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D. Hogan	Office of Public Prosecutions
For the Accused	Ms K. Mildenhall	Nelson Brown Legal

HER HONOUR:

1Jim Adkins, you have pleaded guilty to six charges of sexual penetration of a child under 16.  All charges involved the same child, and occurred over a period of about 6 months, when she was 14, and you 21.[1]

[1] The victim’s age was erroneously said to be 14, not 15, when sentencing commenced. The error was brought to the court’s attention before sentence was passed, and the sentencing hearing adjourned for further consideration. Although the error was later corrected, from paragraph 71 onwards, the remarks are published as they were originally delivered.

2The offending took place in 2016 and 17 and the maximum penalty then applicable for these offences was 10 years' imprisonment.

3Since these offences occurred, Parliament has increased the maximum sentence for sexual penetration of a child under 16 to 15 years' imprisonment and has brought the offence within the Standard Sentencing Scheme. The standard sentence for this offence is 6 years. That is the period Parliament has declared as the appropriate sentence for an offence whose objective gravity falls within the mid-range.  The standard sentence is one of the factors relevant to sentencing which must be taken into account for offences committed after these were committed.

4I mention this, the increase of penalty and the bringing of the matter within the Standard Sentencing Scheme because they highlight the increased seriousness with which Parliament and the community regard such offending.  It is a reflection of the greater understanding not only of the wrongness of such conduct, but of the harm and potential for long term harm caused to victims.  However, having identified that I must, as I understand and I repeat, sentence you against the 10 year maximum that was then applicable. 

5The victim was the younger sister of an old school friend of yours. You were welcomed into their family home as a friend of her older brother. She was 14 and still at school.  You, at 21, had been out of school and working, earning an income, and at times living independently from one or other parent, mixing with people outside the narrow confines of school and family for 5 years. That makes the 6 year age gap even more significant because of the differences in exposure to the world and life experiences of working adults, compared to schoolchildren.

6The victim was, as you knew, vulnerable. She had recently been discharged from a mental health inpatient unit where she had been treated for depression and an eating disorder.

7Initially, when you visited and showed an interest in her after her discharge, her parents thought that this would be a positive, mature influence for her.

8You were trusted to watch movies with her in her room, even to be under the blanket with her when watching. Initially the door of the room was kept open, but eventually the door was closed. Her older brother had moved out of home, but you continued to visit, sometimes up to a couple of times a week. You were trusted and welcomed in the home.

9Whilst gaining the trust of the victim and her parents, you began abusing it. One night whilst watching movies in the victim's bedroom with her, you held her hand, told her she was pretty and smart and that you wanted to kiss her. You did kiss her. You then began to sexually message her on Snapchat. You encouraged her to watch sexually explicit pictures of you, and to send you explicit ones of herself. You suggested over Snapchat that the next time you met that you would have sex, but you warned her that no one could know, and warned her that her brother would kill you.

10It was that that led up to the first act of sexual penetration in October or November 2016, and to which you have pleaded guilty.  That charge is a rolled up charge. You went to see the victim.  You took her shopping and bought her gifts, a blanket and food to eat while watching a movie in her room and you went back to her home and whilst watching a movie behind closed doors in her bedroom, you touched her genitals, had her touch yours, and then sexually penetrated her, first with your finger, then your penis. You told her to be quiet so her mother, who was nearby, would not hear. You did not use a condom and you ejaculated inside her. It was brazen, given her mother was so close, it was unprotected, no condom was used, and you made her complicit in your direction to her to be quiet and to keep it a secret.

11About a month later in mid-December 2016, you took the victim on a picnic. You made it clear that you planned to have sex.  You told her that you did not like condoms and asked her if she was taking contraceptives. So making it clear that you were taking no responsibility for protecting her against the risk of pregnancy or sexually transmitted disease.  You took her to a secluded place, bent her over a log and penetrated her from behind, pulling her hair while you did so. When you had finished, you told her to go and wash herself. This incident constitutes Charge 2.  On the way home, you stopped and bought her a strawberry scented lubricant, suggesting that it would make sexual intercourse more fun, and suggesting that you could try it out if no one was home on your return.

12No one was home on your return to her place, and you engaged in more sexual activity with her. You touched her genitals, she touched yours, and then you digitally penetrated her. It is that that constitutes Charge 3 of sexual penetration of a child under 16.

13The next sexual conduct occurred a few days later and constitutes Charge 4.  You arranged with the victim for her to slip out of her home in the middle of the night. You were waiting in your car nearby, out of sight of the family home. You drove her to a factory car park not far away This time, you produced and used lubricant on her before inserting your penis into her vagina. You asked her, whilst you were penetrating her, if you could lightly choke her. She told you that although she had never done it before, she was willing to try. You grabbed her neck and held it in a tight grip while you continued the act of sexual penetration. It is this that constitutes Charge 4.

14When you had finished, you dropped her off at a street near her home and she found her way back into the house on her own. The next morning, you sent her a message saying you could not wait until she was old enough so that you could start telling people about each other.  In other words you nurtured a continued association.

15Charge 5 occurred on Christmas Day 2016. You had been invited to join the family for Christmas. At one stage, you took the victim into the bedroom, removed her underwear and inserted your penis into her vagina, continuing until you ejaculated. You then returned her underwear to her and left the room.  Again, this was unprotected.

16The last occasion was sometime in February or March of 2017 and like the circumstances surrounding Charge 4, it involved you arranging for the victim to sneak out of the house at night to meet you.  You were parked nearby.  She got into your car and you took her to your mother's house and snuck her into your bedroom. You then produced a pair of black leather hand cuffs and told her that it was a birthday present.

17You removed her top and bra and began to suck on her nipples. You turned her around, pulled her hands behind her back and handcuffed her. You then removed her lower body clothing, bent her over the end of the bed, applied lubricant to her vagina, then penetrated her, first with your fingers, and then your penis. Again, you did not use a condom, and again you ejaculated inside her. That too is a rolled up charge as is Charge 1, of sexual penetration of a child under 16.

18You then drove the victim back to near her home and dropped her off. Her father happened to be driving past and saw her in the street, and then saw you driving off. He stopped you, and you made up a story about happening to have seen the victim in the street and taking her home. You then messaged her so that she could tell the same lie. When her parents confronted her, she repeated the lie that you had told her.

19Later, when the victim went to the police and made a statement outlining what had happened, she said that she did not want it to continue but she did not know how to stop it. She did eventually tell you that she was 'moving on' but you pressed her to continue. She declined. Soon after, you went to the Northern Territory to work and contact between the two of you ceased.

20It was not until two and a half years later after your victim's then partner discovered sexual messages between you and her on the phone, that she told her partner that you had had sex with her when she was only 14. Her partner eventually tracked you down on social media and confronted you. You pleaded with him not to go to the police saying it would ruin your life and asserted that the victim knew what she was doing.

21The victim eventually did report the matter to the police, making a full statement in December of 2019 and a further one in August of 2020.

22In that first statement. she said:

'I have provided this statement as I have a lot of guilt and feel ashamed of what happened with Jim when I was 15 years old. [I interpolate here to say, as the evidence turns out, she was only 14.  She then went on]  Jim would always say during our physical interactions that I shouldn't say anything to anyone and he could get into trouble with police. He also said that I could get into trouble if the police knew about the physical relationship.

23You were arrested and charged in late 2020 and eventually in the course of negotiations during committal proceedings, which had been listed as contested, but before any witnesses were called for examination you entered pleas of guilty to these charges and were committed to this date for plea.

24On the plea it was put that this was a 'relationship'. It was not. It was sexual exploitation of a child. Sections 45 and 47 of the Crimes Act make it clear that children must be protected from sexual exploitation and those who sexually exploit them are committing criminal offences. Those provisions, and the observations in cases such as Clarkson,[2] about the presumption of harm that flow from sexual exploitation of children, cannot be ignored or undervalued. And here, as your victim's victim impact statement makes clear, she has been harmed.  It was only as she grew older, matured, and gained experience of life and perhaps came to understand the importance of autonomy over her own life and decisions, and making informed decisions, that she came to realise the wrong and harm that had been done to her, and she started to feel and grieved that loss of childhood innocence. In her victim impact statement she spoke of her continuing struggles with her mental health, and of the disrespect she feels about herself as a woman.

[2]        Clarkson v The Queen; E J A v The Queen [2011] VSCA 157 (3 June 2011)

25I want to make it clear that it is not she who should feel guilt or shame, but you.

26This is not one of those 'rare cases' where there is no great difference in age, experience or maturity between a child just below the age of consent, and a person barely over the age of legal majority. There are features of this offending which place it clearly in the mid-range of offence gravity.

27There was a 6 year age gap between you and your victim (21 and 14) - seven years actually - and the difference in maturity and life experience between a 14 year old schoolgirl and a 21 year old young adult who had been in the workforce for 5 years, cannot be underestimated.

28There were multiple acts over a period of 6 months.

29You did not use a condom on any occasion, so exposing your victim to the risk of sexually transmitted disease or pregnancy. Although you asked her whether she was using contraception, it is clear that you were putting your own satisfaction, asserting that you did not like condoms, ahead of her protection, against risk of pregnancy.

30Even if you were not, as you later told the psychologist Dr Barth who later assessed you, sexually experienced, you presented to her as such, that is as knowledgeable and experienced in sexual matters. You told her you did not like condoms because of the feel or lack of feel.  On the material before me it was you who initiated and directed the way in which each of the acts would occur.  You removed her clothing, on occasions bending her over to penetrate from behind.  You introduced her to the use of lubricant and applied it to her, and it was you who initiated the more degrading acts you performed on her: pulling her hair, choking her, and handcuffing her. 

31Some acts took place in relatively secluded locations to which you drove her, but all acts including those occurred in places where you could have been discovered (her bedroom and yours when you took her to your mother’s home, in your car in the factory area, and in bushland but just off a walking path).  In other words, there was a sense of brazenness about the prospect of exposure that not only showed control, but also showed a lack of respect for her privacy.

32You told her repeatedly to keep it a secret.  You told her that not only you but she would be in trouble, from family and police. You got her to slip out of the house and to back you up in a lie.  And all of this demonstrates that clear imbalance that I have already alluded to, in power and life experience as well as chronological age.

33She was, as you knew, vulnerable after the mental health episode for which she had received inpatient treatment and you were a trusted friend of the victim's family, thought of as someone who could help the victim after her hospitalisation.

34You clearly exploited and breached the trust that had been placed in you, and you did so for your own sexual gratification.

35It is clear therefore that deterrence, denunciation and just punishment all loom large in the sentencing mix.

36What then are the matters relied upon on your behalf and which counterbalance those matters?

37You are now 27 years of age, an older and more mature man than you were at the time of the offending.  You had no convictions at all at the time that you committed these offences and you have not been in any trouble with the law since.  You are entitled to have your otherwise good character called in aid and counted in your favour.

38Although your parents separated before you were born, and you had limited contact as a child with your father, and you report a strict upbringing and some schooling difficulties, it was not suggested that your development was adversely impacted by exposure to trauma, disadvantage, or neglect. You have good relationships now with both of your parents and with your one sister, all of whom continue to support you.

39Your mother and your sister wrote testimonials, and your sister gave evidence on the plea.  You have been living with your father who has provided you with some support and you have provided him support also.  In addition to the testimonials from your mother, sister, from the pastor and other members of the church community at which you and your family have been members, your sister gave evidence at the plea hearing. All the testimonials and the oral evidence spoke to the high regard within which you were held by your family and by those who knew you.  Your sister described you as a good friend, someone who was extremely loyal and who went out of his way to help others. She said that you had always been a 'bit behind' your peers in school, and that you had continued to fall behind as you had all moved on in life – they were getting jobs and finding partners, and you wanted what they had in your life as well. She said that you thought that you were in a relationship with the victim, and that you were both in love with each other. She said that you now know that what you did was wrong, that you should not have done what you did, and that you have accepted all of this, as well as the consequences that must flow from your actions. She said that as a result of your offending and the subsequent criminal proceedings, you have been upset, depressed and anxious for some time.

40I accept that you are held in high regard by those who know you and the circles in which you move and that this has preyed on you since being charged.

41You reported behavioural problems at school.  You were diagnosed with ADHD, you were medicated for that for a time and you also reported frequent suspensions for misbehaviour and failure to complete schoolwork. Despite that, it would appear you completed Year 11 without difficulty before leaving school.  You then undertook an apprenticeship as a chef, completed Certificates 3 and 4 in commercial cooking and worked as a cook for some time. You then wanted a change and went to work in the field of logistics and transport.  You have had no trouble obtaining or holding down employment.  You were working, transporting plaster sheets at the time of the offending for which I come to sentence you.  You continued working in transport and logistics up until the time you left Melbourne and later in 2017 and after you moved to Darwin.

42In 2018, you were in a serious motorcycle accident. You suffered injuries to both wrists and you are still needing surgery and ongoing rehabilitation. You were found to be at fault for the accident and that has left you with considerable debt. You owe approximately $20,000 to insurance companies and you have had to pay off your bike.  After some time you were able to return to working as a truck driver, but your wrists have continued to cause ongoing, indeed increasing pain.

43You returned to Victoria in 2021 after you had been charged and in contemplation of these hearings and since your return to Victoria, you have not been in paid work.  That is as a combination of the pending court proceedings, the impact of COVID on employment and the continuing disability and pain from your wrists.

44You have no history of mental illness or substance abuse as is obvious from this history of good engagement in work and the testimonials and family support.  You have your supportive family, your employable skills and your good work record., the absence of mental illness or psychological disorder which would impede your rehabilitation, the absence of any evidence of substance abuse, which again could impede rehabilitation, the absence of any criminal history all count in your favour and as supporting your prospects for rehabilitation.

45You pleaded guilty and as both parties acknowledge at a relatively early stage.  Those pleas of guilty clearly are entitled to be taken into account to reduce the sentence otherwise appropriate, not only for their utilitarian benefits in advancing the interests of justice, but also in particular in a case such as this, because you have spared the victim from the ordeal of having to relive the experience and perhaps the indignity of being cross-examined about her conduct, made to feel she was at fault, or having had anything that she said denied.  That carries considerable benefit and entitles you to a considerable reduction in the sentence otherwise appropriate.

46Your pleas of guilty in a time of COVID-19 are also important and entitle you to a greater weight to be given to them.  In doing so you have advanced the interests of justice by not contributing to or increasing the crippling backlog that the courts face in dealing with outstanding matters that had to be held in abeyance whilst Covid prevented the court from engaging in face-to-face hearings and jury trials.

47I accept too that your pleas of guilty are further evidence of remorse that you have expressed and that is supported by what you have said to the assessing psychologist Dr Barth, and to the psychologist with whom you have been undergoing a Sex Offender treatment program, Mr Burrows.  You said to Dr Barth, 'I fell for her, but as an adult I should have put a stop to it. My behaviour was wrong’.

48I also note that your sister reports that you have said to her that you should not have acted in that way and that you are sorry.  I accept those are genuine expressions of remorse.

49I accept too that your wrist injury is a continuing problem and that any period of imprisonment imposed would be more burdensome on you than it would be for someone who has not suffered such an injury. You are likely to have a permanent residual impairment of full function, there is a need for ongoing pain relief, a need for continuing rehabilitation and surgery.  Indeed, I adjourned sentence originally after hearing the plea for a longer period that normally I would have, because you were due to have surgery two days after the plea hearing was listed and I took the view that it was better, kinder and more just to allow you to undergo that surgery that had been booked in the community, and not have you to go back to a starting point in Justice Health to obtain treatment that you so clearly needed.

50I have since then been provided with reports that show the surgery itself appears to have been successful, but you are still undergoing rehabilitation, there is still post-operative care that is required to be done and that there is likely to be further deterioration in the other wrist, further pain, need for pain relief, management and rehabilitation.  Although all of those matters may well have affected you, whether you are serving a term of imprisonment or not, I accept that imprisonment will make any of that more onerous and therefore any term of imprisonment must be reduced accordingly to take into account the added burden of suffering that and needing the continued treatment through the Justice Health system.  And I say that despite the reports that have been provided that indicate that as is consistent with the standards that exist that people in custody are entitled to receive the same level of treatment and care for medical conditions as people in the broader community.  That is not always, sadly, the reality, but that is certainly the requirement and the benchmark; but nonetheless you are entitled to have that taken into account as making imprisonment more burdensome and in the event that imprisonment is imposed, reducing the sentence that otherwise appropriate and properly take that into account.

51In assessing your risk of reoffending and your prospects for rehabilitation, I was considerably assisted by the reports of Dr Barth and Mr Burrows that were tendered on your behalf.

52Dr Barth reported that you impressed, even now at the age of 27, as emotionally naïve and socially awkward.  On your sexual history and your history of intimate relationships, you told Dr Barth that your first sexual experience occurred when you were 20 and that you told him that that was a one-off experience and did not progress to a relationship.  And you told him that your next sexual experience was with the victim.  You told Dr Barth that you had not participated in a stable intimate relationship, that you reported you had had two brief sexual encounters but felt that you lacked the skills to develop a more sustained connection.  You told him that your primary sexual outlet had been online pornography and that you had been viewing internet-based pornography approximately two to three times a week.  On enquiry you said it was predominantly mainstream heterosexual material and in response to direct questioning, stated that you had never viewed any child abuse material.

53Dr Barth said this:

'In essence, it is highly likely that Mr Adkins offending conduct was underpinned by the interpersonal and sexual issues described above.  [I have essentially summarised what I considered to be the salient features already.]  That is, it appears that Mr Adkins' offending behaviour occurred due to his significant social immaturity and inability to establish healthy intimate connections with his own peers during that time.  The fact that the complainant was an underage female meant that she did not challenge his sense of inadequacy and self-doubt.  Finally, Mr Adkins' limited understanding of the normative emotional and sexual development of teenage female children, led to him viewing the complainant as being capable of consenting to sexual behaviour with him, and this is likely to have provided the final disinhibiting factor to his offending.  Mr Adkins' treatment with Mr Burrows has focused on addressing his problematic cognitions, challenging the misconceptions inherent in them and assisting Mr Adkins to develop better coping social skills.  Mr Burrows informs me that Mr Adkins has found the treatment process challenging at times but has nonetheless persevered diligently with working towards the goals of treatment.  Indeed, in the sessions with me, while it was apparent that Mr Adkins had made some progress in gaining insight into his offending, it was clear that longer term therapeutic work remains ahead of him if he is to gain a more detailed understanding of his behaviour.

54On assessing your risk of reoffending in like manner, Dr Barth assessed your risk as low to moderate and he did so by the use of well-known and recognised assessment tools.  That is the assessment of the historical static factors by using the Static-99R test. Taking into account the limitations of the Static-99R, he also applied the risk of sexual violence protocol (RSVP) to assess historical, dynamic and protective factors relevant to sexual offending.

55He concluded on the Static-99 your results indicated you were low/moderate risk of sexual recidivism.  The factors which raised your risk beyond the low range were that you committed the offence at a young age, that you offended against an unrelated female victim, that you have not lived in a stable co-habiting relationship.  On the other hand, he noted you have no other sexual criminal history, no history of non-sexual convictions and he says the current offending did not encompass any violence.  I am not sure that I would accept that last characterisation having regard to the hair pulling, the choking and the use of handcuffs.  However, nonetheless I will accept his assessment of low/moderate risk but with that qualification.

56On the RSVP Dr Barth noted you presented with some relevant risk factors.  Positively your personal background did not indicate entrenched sexual deviance.  He described the period of offending as a relatively brief period of time and again noted without concomitant violence.  I maintain what I have said about that.  And again, he noted that you were not suffering any substance abuse issues which mitigates the risk.

57However, he said the most significant dynamic risk factors were that your insight into your offending conduct is still developing, you have a simplistic understanding of the impact of sexual inappropriate behaviour on teenage girls, and you have suffered with noteworthy intimacy deficits and social skills problems.  Finally, relevant to the assessment of your risk of recidivism is your participation in a special Sex Offender Treatment Program.

58Whilst your progress towards the treatment goals is incomplete and further treatment is clearly required, your capacity to gain some degree of benefit from the treatment you have received indicates that it would have a genuine protective benefit in this case according to Dr Barth.  He also considers that the requirements of Sex Offender Registration and the deterrent aspect of sentencing will confer further protective containment in your case.  So when evaluating the relevant risk factors of the RSVP, it confirmed that you fell within the low to moderate risk category, but Dr Barth noted the risk could be reduced further with completion of a specialist Sex Offender Treatment Program.

59He concluded that in his overall professional opinion, the following conclusions were of significance.  First, you are experiencing ongoing symptoms of a mild level of anxiety and depression. They are not sufficiently severe to meet DSM-5 TR criteria for any mental disorder but considering your stress regarding your legal situation, he considers you should continue to participate in ongoing psychological treatment in the medium term.  Significantly, your thought processes are normal, you are not psychotic, reality testing is intact, your moral judgment is unimpaired and your intelligence is estimated to be in the normal range.  All of those are significant protective factors.

60Dr Barth again notes the significance of the fact that you were slow to develop socially and that even now your social skills remain poor.  He said that your sexual adjustment reflects the problematic features of your interpersonal adjustment, that you have had significant difficulty initiating and maintaining healthy adult intimacy and the offending conduct is likely to have emanated from the intimacy difficulties and social immaturity which were relevant at the time.  That is, said Dr Barth:

'He sought a sense of sexual intimacy with an "underage partner" to assist him to overcome his feelings of inadequacy which would otherwise have prevented him from seeking sexual intimacy with another.  Finally, Mr Adkins’ offence supporting cognitions regarding the precociousness of the complainant provided the final disinhibiting factor which allowed him to justify his offending behaviour at the time.  These features of Mr Adkins' interpersonal and sexual adjustment have been the focus of treatment with Mr Burrows.  My assessment is that Mr Adkins is still in the early stages of treatment and addressing his issues.  Nevertheless he has expressed a strong motivation to continue.  Clearly though, more extensive intervention is warranted before the factors which underpinned his offending have been comprehensively addressed.

61In conclusion then Dr Barth noted that you had expressed remorse, that you had commenced the Offence Specific Treatment, made some initial progress but again cautioned that your insight was still underdeveloped, and treatment was incomplete. Therefore he recommended that it was imperative that you complete a Specialist Sex Offender Treatment Program at the earliest opportunity.  The components that he identified as being essential for sex offender treatment were assisting you to gain further insight into the emotional, interpersonal and sexual factors which motivated your offending, and further psychoeducation regarding the normative sexual development of underaged females. Improving your poor social skills and self-esteem should continue to be a prominent feature of any intervention to enable you to address intimacy-related problems constructively. 

62In summary, he said the more treatment you are able to access, the better for your rehabilitative prospects in the community.

63In quoting from what Dr Barth has said, I have referred in passing to assessments made by Mr Burrows and which were quoted by Dr Barth.  I rely particularly on what is contained in paragraph 4, setting up of treatment goals; paragraph 7, under treatment progress; and paragraph 10, under summary of his report.  That is: 

'The broad treatment goals are to assist Mr Adkins to gain insight into the underlying motivation to his offending behaviour and address the relevant interpersonal and sexual issues, to enhance his victim empathy, develop a solid relapse prevention plan and effectively regulate his emotions.  Mr Adkins demonstrated an improved understanding of the requirement of consent but found it difficult to apply this to the circumstances of his offending behaviour.  In particular, he found it difficult to restructure his offence-supporting cognition that the complainant provided sexual consent by being an active participant.  His limited progress of this regard appears to be best explained by the ongoing impact of his general immaturity.  Mr Adkins requires further intervention of these to successfully restructure the offences-supporting cognition he relied on to justify his offending behaviour and enhance his victim empathy.

'In summary, Mr Adkins has engaged actively in the Sex Offender Treatment Program, however, his progress has been relatively slow.  He has developed good insight into the factors that contributed to his offending behaviour but has found it difficult to understand the destructive impact of his actions.  To Mr Adkins' credit, he attended regularly and engaged in the process in a sincere manner.  He expressed his desire to continue with the Sex Offender Treatment Program and I can confirm that I am willing to continue treating him.' 

64I accept the opinions and recommendations of Dr Barth and Mr Burrows save for that qualification about the absence of violence having regard to those three features that I have already mentioned. 

65It follows from that that whilst there are many positive factors that I have already identified counting in your favour in assessing your prospects for rehabilitation and many positive factors that were identified by Dr Barth and Mr Burrows, you do present as posing a low to moderate risk of recidivism - that is of reoffending in like manner.  Despite participation in nine sessions of a Sex Offender Treatment Program and genuine committed participation, it is clear that you need to engage in considerable further programs to address the risk.  Your risk is likely to reduce over time if you continue to participate in sex offender treatment programs.  And I take into account in your favour your commitment to participation to date and your expression of willingness to continue to do so.

66Ms Mildenhall submitted that this was a case where a non-custodial sentence was within range and appropriate in the circumstances.  In addition to matters I have already canvassed at some length, she also relied on the additional hardship of imprisonment in these times of COVID.  I accept for the reasons that have been expressed in Worboyes and the cases since then that imprisonment in COVID times is clearly more onerous than pre-COVID and must be taken into account in determining whether a sentence of imprisonment should be imposed at all, and if so, the duration of that term.[3]

[3]        Worboyes v The Queen [2021] VSCA 169.

67Imprisonment means that there is lack of autonomy over controlling your own environment and circumstances and exposure to risk and much greater restrictions in terms of freedom of movement of prisoners and access to programs and facilities and much more restrictions in terms of access to visits and contact with family and the outside world. 

68There is the risk that if COVID does come into a prison environment, it can spread rapidly and that in itself leads to further restrictions on freedom of movement and access to services, facilities and contact with other people in the outside world.  All of those are considerable factors which must be properly taken into account and I do.  It has been two years that we have been sentencing people in COVID times and the continuing impact is clear and obvious and my brief reference to the impact of COVID on imprisonment is not in any way intended to undervalue it. I am fully aware of it; fully mindful of it and give it considerable weight.

69Each of Ms Hogan and Ms Mildenhall took me to what they submitted were comparable cases for sentencing of young people with an age disparity between four and six years engaged in sexual activity where the victim was under 16.  Each of Ms Hogan and Ms Mildenhall properly acknowledge that no cases are directly comparable but they can provide some guidance.

70After plea and before sentence, the Court of Appeal delivered its reasons in Rose, a case that Ms Mildenhall in her latest submissions has submitted was the most closely comparable to your circumstances, and which, she submitted, provided strong support for her submission that a community correction order was in range.  Ms Hogan also provided supplementary submissions addressed to Rose and submitted that there were material differences.

71I looked at all the comparable cases that have been provided at the time of the original plea and I have looked at and read Rose very carefully.  I have gone back to it having regard to the submissions about its impact and significance placed on it by both Ms Mildenhall and Ms Hogan.  It is clear there are both similarities and differences in the sentencing facts before the sentencing judge and the Court of Appeal in Rose and those before me.  And on analysis and consideration, I am not persuaded that the similarities are sufficient to lead me to conclude, either because of it alone or having regard to the circumstances generally that I have identified, that in your case a community correction order is within range.  In particular, having regard to Rose and how like it is to this case, I note the following.  The offender in Rose was 18 at the time, not 21 as you were.  The age gap in Rose was four years, not six or seven.

72It was at this stage of the delivery of my reasons for sentence on 17 June that Ms Mildenhall counsel for Mr Adkins interrupted me to point out I was in error. As the prosecution opening, and the plea submissions all made clear, the victim was 15 at the time of the offending, not 14. In preparing my reasons for sentence, I had fixed in my mind that the victim was 14.  She was not.

73After a short discussion, and having given Ms Mildenhall the opportunity to briefly confer with Mr Adkins, I adjourned the hearing. That was to give Ms Mildenhall the opportunity to review the unrevised transcript of the sentencing remarks that I had already delivered, and make submissions on the impact of my mistaken belief about the victim’s age on my reasons, and make further submissions about the appropriate sentence.

74And, as I said before adjourning, I wanted to take time to reflect on whether, and if so how, that error in relation to the victim’s age had influenced by reasoning, my findings, and the sentences I had fixed on.

75I commend Ms Mildenhall for taking that unusual, but very appropriate step of interrupting the delivery of sentencing remarks, to bring the error to my attention

76And I again, acknowledge it was an error for which I take full responsibility. I apologise to Mr Adkins, and indeed to all who have an interest in this proceeding, for the error.  I accept, as Ms Mildenhall submitted in her supplementary submissions, that that has exacerbated the anxiety and uncertainty of having a sentence hanging over Mr Adkins head during that additional adjournment.

77Mr Adkins plea was heard on 3 May. Normally I would have fixed a date in the week following the plea hearing for passing sentence. I had instead initially allowed a period of 4 weeks, as I was told on the hearing of the plea that Mr Adkins was booked to have surgery on his wrist two days later the plea.  I therefore fixed a time to allow for that surgery, for post operative recovery and rehabilitation to take place before proceeding to sentence.  In part so that could be done with Mr Adkins treating doctors and outside the health system rather than through Justice Health, and so that he would not be put in a position where he had to go back on the bottom of a waiting list.  That did have of itself, an unfortunate feature of putting the sentencing off for a period of four weeks instead of one. 

78Scheduling difficulties had led to the need to vacate the date that I then fixed at the end of May and to fix a new one to later in June. That then had to be shifted by a further day, to last Friday.  By the time Ms Mildenhall had brought the error to my attention, I had already indicated that I had reached the conclusion that no sentence other than one of imprisonment was appropriate, having regard to the view that I had formed of the gravity of the offending, and notwithstanding the matters relied on in mitigation.

79I accept that the exacerbation of the anxiety and uncertainty of delay from plea to sentence, particularly the delay from the date the matter was first listed for sentence, on 31 May, until today, is a matter proper to take into account in considering afresh, the type of sentence, and its duration.  Not only considering those matters afresh but in mitigating the sentence that otherwise would have been imposed.

80In her supplementary submissions, in addition to making submissions about the correct approach to approaching sentencing when the victim was a 15 year old, as opposed to a 14 year old, Ms Mildenhall also addressed the findings that I had at paragraphs 54 and 5 of my unrevised reasons in relation to an opinion of Dr Barth. I have made those findings and whilst it is clearly open to her to argue in another place if she considers it appropriate that they are to be challenged,  I do not consider it appropriate to revisit those. I stand by what I have said.

81Ms Mildenhall has also made further submissions in relation to the impact of Rose’s case.  It was in the course of delivering my analysis of the differences and similarities in Rose's case when the interruption occurred and Ms Mildenhall pointed out my error in stating the victim’s age.

82I have considered what Ms Mildenhall has said in her additional submissions in relation to that, reviewed what I had already written and I have taken into account her additional submissions on Rose.  I want to place it on record that I have not changed the analysis that I have done of the similarities and differences in Rose and I will continue to deliver them as I had originally planned them.  That is not to say I am ignoring Ms Mildenhall's submissions but I want to make it clear that, that part of my reasoning pre-existed the discovery the error and having considered it I have formed the view that it is not necessary to revise the analysis of the similarities and differences by reason of my error in age. 

83Turning then to Ms Mildenhall’s submissions on the age error, and my own reflections on the influence on my reasoning of the mistaken belief the victim was 14, not 15 at the time of offending. First, just a minor correction: Ms Mildenhall's submissions referred to my draft reasons.  I think it is more appropriate to describe them as my unrevised reasons. 

84Ms Mildenhall correctly identified paragraphs 1, 5, 20, 22, 26 27 and 70 as the paragraphs where I refer to the victim as 14.  There was a further paragraph identified by Ms Mildenhall, 24 I think, where I couldn't find a reference either to actual age or to statements that indicated there was a reference that showed that I was influenced by an age of 14 not 15.  So I proceeded anyway on the basis, confirmed by  my own reading and analysis of my unrevised reasons that I refer specifically to the age in paragraphs 1, 5, 20, 22, 26, 27 and 70.  I accept Ms Mildenhall's submissions that looking at the victim’s date of birth she was 15 years and 5 months at the start, and 15 years and 11 months at the end of the period of the offending.

85Ms Mildenhall submitted “the complainant’s maturity was in line with a child aged 15 ½ to almost 16”. Whilst it is proper in my view to take into account that the victim was approaching the age of consent, this is still not in my view one of those 'rare cases' where there is no great difference in age, experience or maturity between a child just below the age of consent, and a person barely over the age of legal majority.  That, of course, is 18.

86The fact remains, as I said a number of times in my reasons, there was a 6 year age gap. At paragraph 5, I have teased it out and referred not only to the 6 year gap, but the difference between a schoolgirl and a young adult who had been out of school, working, earning an income, and at times living independently from one or other parent, mixing with people outside the narrow confines of school and family for 5 years of the 6 years of that age gap.  That is a view of mine that remains unchanged. 

87There was evidence from Dr Barth and Mr Barrows I had accepted as to Mr Adkins’s social immaturity.  By contrast however, I have no evidence before me as to the victim's level of maturity. In my view, absent expert evidence about levels, and variations in levels of maturity of 14 year old girls, or 15 year old girls, or girls between 14 and 15 or the difference between 14 and 15 year olds as a generalisation,  courts must be slow to make generalisations about their relative levels of maturity.  There is no evidence about this victim's level of maturity to permit any findings about her level of maturity compared to other girls of 15 and a half to nearly 16.

88I do note in this context too that in Dr Barth's report, already quoted by me at paragraph 59 of my unrevised reasons, Dr Barth referred to Mr Adkins’s offence supporting cognitions regarding the precociousness of the complainant as providing the final disinhibiting factor which allowed him to justify his offending behaviour.  That in my view does not provide any evidence about the victim's level of maturity.  Dr Barth, there is in my view very clearly referring to the way the victim was described to him by Mr Adkins.

89Courts should be wary of falling into the same trap of offence supporting cognitions regarding the precociousness of the complainant.  As I said last Friday, it is difficult for me to state, or seek to objectively to tease out from what I said last Friday the extent to which the age of 14 as opposed to 15, influenced my reasoning without it risking appearing self-serving or defensive.  I have done my best to put ego aside, and look at it objectively.

90For the reasons I outlined last Friday, I had approached the assessment of relative seriousness of the offending by reference to Mr Adkins’s age, and the significance of that 6 year age gap, having regard to his life experience, as a young adult and on the information that was before me, 5 years out of school at that time, and a schoolgirl.  The 6 year age gap which I refer throughout was a correct characterisation, as was my reference to Mr Adkins’s age (21) and the differences I had identified in his life experiences compared to the victim's.

91I remain of the view that, even when appreciating that doing the math would have led to the realisation that the victim must have been 15 not 14, that it is a schoolgirl, under the age of consent that is more relevant to the way I had approached it and way I had previously expressed myself. 

92I remain comfortably persuaded that no sentence other than one of imprisonment is appropriate, having regard to the age of Mr Adkins at 21, and with those differences in life experience relevant to assessing how significant that 6 year age disparity was with an underage schoolgirl.  Whilst it is correct to say that the victim was close to the age where the law declares that she would be capable of consenting to penetrative sexual activity, nonetheless, she was, as Mr Adkins well knew, below that age where she was at law capable of consenting.  Hence, to say that she consented, or in both their minds, this was a “relationship” misses the point.  The very nature of the offence flows from a prohibition on engaging in acts of sexual penetration with a child under 16.  Absence of ‘ostensible consent’ leads either to the presence of a further aggravating feature beyond breach of trust, or in more serious circumstances, when the offender knows if there is not even ostensible consent, a more serious charge, that of rape.

93Having said all of that, I have nonetheless decided that the just and appropriate course to take is to reduce the sentences that I had originally fixed on for the individual charges, and the total effective sentence.  I have done that by a 6 month reduction.  That is in part to reflect the exacerbation of the anxiety and uncertainty caused by the delay, and in part to acknowledge the perception, despite my best effort to remain intellectually honest, that my mistaken belief about the victim's age led to a greater sentence that I would otherwise have imposed.  I have deliberately not embarked upon an analysis exercise of trying to work out if I had known the victim was 15 from the start as opposed to 14, whether I would have fixed on the same or lessor sentences because I don't think that I could have done that with intellectual honesty or intellectual objectivity, I suspect is probably a better way to characterise it.  As I said, I have done my best to be intellectually honest and to put my ego aside. 

94Again, in order to reinforce the changes that I have made as a result of my error, I have left the 6AAA declaration unchanged.

95To return then, to my sentencing reasons, I will pick up from where I started in 17 June with my analysis of Rose, that is from paragraph 70 of the unrevised reasons. 

96I have looked at all the comparable cases that have been provided at the time of the original plea and I have looked at and read Rose very carefully.  I have gone back to it having regard to the submissions about its impact and significance placed on  it  by both Ms Mildenhall and Ms Hogan.  It is clear that there are both similarities and differences in the sentencing facts before the sentencing judge and the Court of Appeal in Rose and those before me.  And on analysis and consideration, I am not persuaded that the similarities are sufficient to lead me to conclude, either because of this alone or having regard to the circumstances generally that I have identified, that in your case Mr Adkins a community correction order is within range.  In particular, having regard to Rose and how like it is to this case, I note the following.  The offender in Rose was 18 at the time, not 21 as you were.  The age gap in Rose was four years, not six.  In Rose both the offender and the victim were still at school and at the same school.

97You Mr Adkins were 5 years out of school and had a steady work history.  A grown-up independent life not that of a dependant school student. 

98As the Court of Appeal put it, based on the psychological opinion in Rose, that was a relationship between adolescents who were pupils at  the same school.  That was not the case here. 

99In Rose the sentencing judge was unable to make a finding whether Mr Rose knew his conduct was illegal.  You Mr Adkins knew it was and said that you were the adult. 

100In Rose, the delay between offending, charge and sentencing meant Mr Rose had lost the real possibility that otherwise would have been open, of a Youth Justice sentence. That was clearly never applicable here.

101In Rose, the sentencing judge and the Court of Appeal found that his prospects of rehabilitation were very good.  Here I have made a finding that your prospects of rehabilitation are good, but guarded.  Both of you had no previous convictions and no subsequent convictions but in Mr Rose's case the psychological evidence presented to the court and accepted both the sentencing judge and the Court of Appeal, included a finding that the risk of reoffending was minimal, and the psychological opinion I should say, of Ms Matthews and the provisional psychologist who wrote the opinion with her was that in Rose the behaviour was a developmental function of adolescence, not deviance.  I noted that Mr Rose by the time of sentencing possessed significant insight into his behaviour.  I have already identified the saliant features of Dr Barth’s opinion which distinguishes your case from that case.

102The Court of Appeal found in Rose that there was substance to the applicant’s contention that his conduct fell within the bounds of teenage sexual exploration and experimentation. That is clearly not the case here, having regard to in reliance on opinions of Dr Barth and Mr Burrows.

103In Rose, the Court of Appeal found that Mr Rose met the DSM criteria for major depressive disorder.  His mental health issues pre-dated being charged and there was evidence accepted by the Court of Appeal of a further deterioration in Mr Rose's mental state since he had been imprisoned.

104Here Dr Barth found that there was evidence of mild distress, not out of proportion for a person in your situation and not sufficient to warrant any diagnosis under DSM – 5 - TR.

105Although Rose was not one of those rare cases of the sort an earlier Court of Appeal in Clarkson had held might warrant a non-custodial sentence, that is where 2 young people, not far apart in age, were in what I understand them to characterise as a relationship between equal, the Court of Appeal found in Rose that the factors of youth and immaturity had a very significant role to play in the exercise of the sentencing discretion.  Whereas it found the applicant had very good prospects of rehabilitation, which would be jeopardised by imprisonment, leading to the conclusion that although it was not a rare case it was not an easy case to fit with the general principles,  and therefore overturned the sentence, those findings are not open to me, having regard to Dr Barth’s report.

106So it is after careful consideration that I am and remain of view, that no sentence other than one of imprisonment to mark the seriousness of the offending is open.

107Although, it must be reduced considerably by reason of the matters I have canvassed.  In particular your relative youth at the time, and that you are otherwise good character,  your plea of guilty and the time at which it was entered, the additional waiting occasioned by Covid and the impact that has on the criminal justice system and the backlog, your remorse as evidenced by your guilty pleas and also your engagement in a Sex Offender Treatment Program, your family support and demonstrated capacity to engage in meaningful employment, the hardship caused by the pain and limited use of your wrists and the need for continued treatment, and the effect of the risk of contracting Covid whilst in custody and the restrictions  that places on prisoners.  All of those matters are proper to take into account and weigh significantly.

108You fall within the serious sexual offender provisions,  once I decide to impose a sentence of imprisonment for 2 charges.  Once I sentence you to imprisonment on Charges 1 and 2 I must declare you a serious sexual offender in respect of Charges 3 to 6, and sentence you as such.  I direct that this be entered into the records of the Court.  In sentencing you as a serious sexual offender, I must have regard to protection of the community as the principal purpose of the sentences I impose.  The serious sexual offender provisions also direct that the terms of imprisonment I am to impose on Charges 3 to 6 are to be served cumulatively unless otherwise ordered. 

109Nevertheless, that legislative direction must be balanced against the principle of totality, and the need to ensure the total sentence appropriately reflects your offending as a whole, and is not disproportionate or crushing.  I do not consider it necessary or appropriate for the purposes of protection of community that the sentences are wholly cumulative, and I have fixed a very moderate degree of cumulation between the individual sentences to reflect the different acts over the different periods. 

110Given the offence of sexual penetration with a child under 16 carried at the time a maximum penalty of 10 years’ imprisonment the offences are also Class 1 registrable offence under the Sex Offenders Registration Act. Accordingly, by that Act, you are obliged to comply with a reporting conditions under that Act for life. I have no discretion in relation to that.

111I have sought to impose separate sentences for each charge with some variations to reflect what I see to be the difference in gravity between the individual offences.  That is reflected in the sentences I am about to pass.

112Could you now please stand Mr Adkins.  Jim Adkins on the 6 charges of sexual penetration of a child under 16 to which you have pleaded guilty you are convicted. 

113On Charge 1, the rolled up charge, the first acts you are sentenced to be imprisoned for a period of 1 year and 9 months.

114On Charge 2, a single act charge but which like Charge 1 involved no condom and also had the hair pulling, you are sentenced to be imprisoned for a period of 1 year and 6 months.

115On Charge 3, which was absent are the features of hair pulling, choking or handcuffs and absent the feature of unprotected penile penetration, you are sentenced to be imprisoned for a period of 12 months.

116On Charge 4, which was an unprotected act of penile penetration and involved the choking, you are sentenced to be imprisoned for a period of 2 years.

117On Charge 5 which involved unprotected penetration but without choking, hair pulling or handcuffs you are sentenced to be imprisoned for a period of 1 year and 3 months.

118On Charge 6, another rolled up count, another count of unprotected penile penetration and involving the use of handcuffs you are sentenced to be imprisoned for a period of 2 years.

119I make the base sentence Charge 2 and I direct that 2 months of the sentence on Charge 1, 2 months of the sentence on Charge 2, 1 month of the sentence on Charge 3, 2 months of the sentence on Charge 5 and 2 months of the sentence on Charge 6 be served cumulatively upon each other and upon the base sentence. 

120That makes a total effective sentence of 2 years and 9 months and I fix a period of 1 year and 3 months as the time that you must serve before being eligible for parole.

121I declare pursuant to s.6AAA that but for your pleas of guilty I would have sentenced you to a Total Effective Sentence of 6 years’ and 6 months imprisonment, with a total non-parole period of 4 years’ imprisonment.

122I must have provided to you Mr Adkins the reporting conditions under Sex Offender Registration Act. They have been signed by me. There's provision on them for you to sign an acknowledgement of having received them. You don't have to sign that acknowledgement if you don't want to. The court record will show in any event that you have been provided with the reporting conditions. I'll have those provided now.

123Before concluding I want to emphasis again the importance of corrections making available to Mr Adkins both during the custodial term of his sentence and should the parole board see fit to release him on parole, and while he is on parole, all possible opportunities to continue the sex offender treatment program that he has embarked upon with the emphasis on the parts of the program encouraged and directed by Dr Barth and Mr Burrows.