Director of Public Prosecutions v Aldrich
[2015] VCC 1913
•17 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-15-01448
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAMUEL ALDRICH |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 9 December 2015 | |
DATE OF SENTENCE: | 17 December 2015 | |
CASE MAY BE CITED AS: | DPP v Aldrich | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1913 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms S. Borg | Office of Public Prosecutions |
| For the Accused | Mr P J Hannebery | Hannebery Law |
HER HONOUR:
1 Samuel Aldrich, you have pleaded guilty to one charge of aggravated burglary, one charge of rape (a representative charge) and three charges of indecent assault. The maximum penalties applicable are for aggravated burglary and rape, 25 years' imprisonment and indecent assault, 10 years' imprisonment.
2 These crimes arise out of events which took place on 21 May 2015 between yourself and the victim of your offending, CB. I will be anonymising, Ms Borg, if you could explain to the family. No offence intended.
3 It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor (Exhibit A). I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say that the facts in this case are most serious and disturbing.
4 I turn to a summary of your offending.
5 The victim, CB, was 16 years of age at the time and you were 18 years of age and are 19 at sentence. CB lived at an address at Cheltenham with her parents and slept in a bungalow at the rear of the property.
6 You lived at an address in Cheltenham, approximately 350 metres from CB’s home. You were not known to CB prior to this offending.
7 So I turn to the background to your offending.
8 On 17 May 2015, at approximately 2.26 pm you walked past CB’s house and took a photograph of the front of the property and rear of the family car, including the registration plate.
9 Three days later, on 20 May 2015 at approximately 5.10 pm, you used your mobile phone to search through Google and the following terms – “How easy do people wake up?” and “How to make sure you don’t wake someone up”.
10 You also searched for “sleeping porn” videos through Google and viewed a number of pornographic videos relating to sleeping girls. You also conducted a search through Google of the phrase “spying on a girl sleeping”.
11 You continued to search for, and view, pornographic videos relating to sleeping girls and the titles referred to in the Prosecution Opening (paragraph 10).
12 You finished watching pornography at approximately 9.50 pm on 20 May 2015 then left your address and walked to CB’s home, arriving there at approximately 10.35 pm. You removed your shoes, entered the backyard through a metal gate, and a timber gate, which were latched but not locked. You remained in the backyard until just after 11.00 pm, at which time you left through the same gates you had used to gain access to that property.
13 At that time, CB’s parents, BJ and CJ, were in their bedroom at the side of the house, on the same side of the house as the two gates. BJ heard gates, got up, went outside and saw you standing on the footpath. He noticed you were holding a pair of shoes in your right hand and he asked you “Were you just down our side fence?” You replied, “No, it wasn’t me.” BJ asked you, “Are you sure?” and you replied “Yeah, I’m sure.”
14 BJ noticed you had a grey pullover on with a hood over your head and were about 18 or 20 years of age. As you did not appear nervous, BJ accepted your explanation.
15 BJ went back inside the house and spoke to his wife, however because of the concern he had regarding your presence he checked CB’s phone in the living room, to see if there were any text messages to her. There were no such messages and BJ went to bed at about 1.15 am.
16 You returned to your home at 11.18 pm after having been confronted by BJ and you continued to watch pornographic videos on your phone, the titles are referred to in the Prosecution Opening (paragraph 17). Disturbingly, these also referred to ‘sleeping females’ and sexual activity with same.
17 You watched that pornography until about 1.34 am on 21 May. You then left your address and returned to CB’s home. This time you accessed CB’s property by going over the back fence.
18 You opened the door to the bungalow and entered CB’s bedroom. What followed thereafter is chilling.
19 Charge 1, aggravated burglary. You opened the door to the bungalow and entered CB’s bedroom. The prosecution case was that you had previously been at the property, taken photographs of it, been in the backyard prior to re-entering the yard, conducted Google searches and watched pornography involving sexual acts upon women while they slept, all indicative of your intention to commit an offence involving an assault at the time you entered the bungalow (a sexual assault).
20 CB rolled over in her sleep and woke to find you crouched beside her bed. You put your hand on her wrist and told her “Ssh, ssh, it’s okay.” CB was afraid and thought she was dreaming. She realised it was not a dream. She knew it was a male from your voice. You covered her face with blankets, which made it difficult for her breath and she felt hot and started to shake. You told her you had a knife, and believing that you had a knife, I have no doubt CB was absolutely terrified. CB became quiet.
21 I interpose, it is not the prosecution case that you did have a knife. Rather that you threatened CB telling her you had a knife, CB did not see a knife.
22 You got onto CB’s bed on your knees, pulled her pyjama pants down to her knees and stroked the inside of her buttocks and genital area, an uncharged act.
23 You then digitally penetrated her vagina, as outlined in the Prosecution Opening (paragraph 22).
24 CB pleaded with you not to do this to her, however you continued. You then touched her clitoris, stomach and breasts, relied upon as uncharged acts. You put your fingers inside her mouth (Charge 3, indecent assault), re-inserted your fingers into her vagina (part of Charge 2), and used a torch on your mobile phone to look at her genital area.
25 You stroked CB’s anus (paragraph 26, indecent assault), took photographs and used a phone torch to view her genitals.
26 You then put your head towards CB’s vagina and she implored you not to do that (Charge 5, indecent assault). You, again, inserted your fingers into her vagina (paragraph 28, also Charge 2, rape). You undid her bra (an uncharged act), before again inserting your fingers into her vagina (also Charge 2). You fondled her breasts (an uncharged act), then masturbated yourself and again re-inserted your fingers into her vagina while continuing to masturbate (also Charge 2, rape). You again inserted your fingers (paragraphs 32-33). After that offending, you remained in the bedroom with CB for approximately 20 minutes before leaving the house at approximately 3.27 am. You were in CB’s bedroom for approximately two hours, from approximately 1.34 am until 3.30 am. During your offending CB spoke to you to try and keep you calm as she was fearful you would become aggressive with her. You told her you had a knife and CB believed you.
27 It is difficult to find words that adequately describe your offending. It was, to say the least, vile, terrifying and would have been absolutely traumatic for CB. The two hours must have seemed like an eternity to her. She was in her own home, being sexually abused by you.
28 Shortly after that, CB went into the main house, collapsed on her parents' bed crying and told them you had been in her bedroom touching her. Despite CB’s urging that BJ not check the property as CB feared you had a knife, BJ went outside to see if he could see anybody. CB’s mother called 000 at 3.37 am and police arrived almost immediately and CB provided a description of you to police.
29 A medical examination was conducted of CB at 9.15 am that same morning and she participated in a VARE on 22 May 2015. Mr Hannebery, who appeared on your behalf, accepted the contents of CB’s VARE as accurately describing the events that night. A reading of the VARE transcript provides a real appreciation of CB’s attempts to placate you.
30 As a result of descriptions provided to police by CB, BJ and a neighbour, GU, a Photo Board was compiled. Details were released to the media of those descriptions and of your offending in an attempt to locate you.
31 On 23 May 2015, you surrendered to police and participated in a taped record of interview. You admitted you were the person in the media reports and in the bungalow where CB was assaulted but, otherwise, provided no comment responses. But of course, to answer that way was your right. You were charged on 23 May 2015 and have been in custody since.
32 There are a number of aggravating features of your offending, including a significant and troubling level of preplanning, not only involving your prior attendance at the property on the 17th, but also your attendance on the 20th when spoken to by BJ, also your accessing various sites regarding sleeping female victims of sexual assaults. The level of preplanning, in your case, was significant. Your offending also involved threats to ensure CB’s compliance. Further aggravating features of your offending involved the use of your phone to photograph CB’s genitals and using your phone as a torch to view her genitals.
33 Not surprisingly, the victim of your offending, CB, has suffered considerably as a result of it, and I shall return to pass some remarks on that subject shortly. This was no doubt a frightening experience for CB. As I said, your offending was protracted and vile. You disregarded CB’s pleas for you to desist.
34 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour, and I do so. The community, by your plea, has been spared the time and cost of a trial and witnesses have been spared the ordeal of having to give evidence upon your trial, and in particular I refer to CB. Further, I take into account in your favour you nominated early your intention to plead guilty to these charges on 21 August 2015 at a committal mention and that you attended police voluntarily.
35 Mr Hannebery, who appeared on your behalf, prepared a written outline of submissions for your plea.
36 Regarding the seriousness of the charges before me, Mr Hannebery conceded that your offending involved entry into a private home (specifically bungalow) where a 16 year old child was sleeping. That you were aware there was a person present at the time of entry, and you entered with an intention to commit a serious offence, namely an assault on the occupant. He further conceded, as he must, your offending involved premeditation, pre-planning.
37 Regarding the rape charge (a representative charge), Mr Hannebery conceded that that individual charge involved six other acts of digital penetration of a girl under 16 in her own home. He further acknowledged that you had told the victim you had a knife, and that your offending had involved a number of different types of indecent assault upon CB and over a protracted period.
38 Mr Hannebery submitted your offending however did not involve any physical injury to CB, and I discussed this with him. I accept there was no infliction of force over and above that required to commit the offences before the court.
39 Mr Hannebery conceded your offending, both individually and in its totality, was very serious and I agree. He correctly acknowledged when sentencing you the need for punishment, denunciation and deterrence.
40 Mr Hannebery submitted there are a number of matters in mitigation of sentence, including your early plea of guilty and I accept, as I have said, your plea of guilty was entered at the first reasonable opportunity and as a result, as previously stated, saved court time and the complainant from giving evidence. I also accept your plea of guilty is indicative of remorse.
41 Further, as I have said, I accept you have expressed remorse for your offending to family, friends and Dr Cunningham and also that you displayed remorse by voluntarily attending at the police station shortly after your offending.
42 Mr Hannebery, during your plea hearing, relied upon your age at the time of the offending and at sentence. You were 18 at the time of the offending and 19 at sentence. I am conscious when sentencing young offenders (you) that cases such as R v Mills[1] are important. However the principles in Mills are general propositions and not of automatic or usual application. Each case ultimately depends upon the circumstances, including the circumstances of the offending as well as the offender (see DPP v Lawrence[2]). Sentencing young offenders has been referred to in a number of cases and the following list is not exhaustive.
[1] [1998] VSC 241
[2] (2004) 10 VR 125
43 In Azzopardi v The Queen[3], Redlich JA said:
“The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.”
[3] (2011) 219 A Crim R 369
44 In R v Tran[4], Justice of Appeal Callaway said:
“The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not its only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true that, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence, but the word I have italicised is there to remind us that there are cases where just punishment, general deterrence or other sentencing objectives are at least equally important.”
[4] (2002) 4 VR 257 at p.452
45
Mr Hannebery submitted you had substantial prospects of rehabilitation, as outlined in paragraph 8 of his submissions, which I have taken into account. When sentencing you I must seek to maximise your chances of rehabilitation as they may be. I have some concerns regarding your rehabilitation prospects as there is no explanation before me for this offending, nor has
Dr Cunningham addressed your viewing of the specific pornography relating to sleeping females prior to your offending in his reports.
46
I also note that whilst of course it is commendable your offending occurred against the absence of the presence of alcohol or drugs, on the other hand that suggests offending with perhaps a ‘clear head’ or at least not affected by drugs or alcohol. There are, however, a number of matters to which
Mr Hannebery referred which suggest your rehabilitation prospects are good.
47 Mr Hannebery also relied upon your lack of prior court appearances or anything subsequent or pending and of course I am well aware of that.
48 There were two reports before me from Dr Aaron Cunningham, Forensic Psychologist. He initially assessed you on 26 May 2015, and in that report referred to your background and history, which was also elaborated upon by Mr Hannebery in his oral submissions.
49 Mr Hannebery referred to the significant family support you had, and a number of representatives of your family in court during your plea hearing to support you. He relied heavily upon your family being able to provide you with the necessary supports upon your release from custody, and referred to the references that were tendered to which I shall also refer.
50 You were born in Queensland and raised in Port Douglas with two older brothers. Your parents separated when you were very young and both your mother and father relocated to Victoria. You then lived between your mother and father in Victoria, which resulted in a disrupted education. Your parents reconciled in 2004 for two years, and at that time you returned to live in Port Douglas.
51
You reported two significant romantic relationships, the most recent relationship having ceased three weeks prior to his assessment of you on
26 May 2015.
52 You attended Port Douglas Primary School and then St Bede’s College for six months, describing yourself as a loner at school. You attended Cheltenham, Parkdale and Sandringham Secondary Schools, completing your education at 17 years of age, then Holmesglen TAFE, where you a completed a six month carpentry pre-apprenticeship.
53 You had in the past worked at Vic’s Mowers Port Douglas, then moved to Brisbane, working for six months for your brother in a carpentry business. In February 2015, you came to Melbourne and a month prior to this offending you had started working at a café in Mordialloc.
54 Turning to your drug and alcohol history, you said you used alcohol and ecstasy on weekends with friends and had also used cannabis since returning to Melbourne as a form of “stress management”.
55 You did not report any sexual attraction to underage children, nor did you present with a history of looking at violent pornography. You said that you first heard a woman might enjoy non-consensual sex when your ex-partner had discussed her fantasy.
56 In Dr Cunningham’s opinion, you met the criteria for a diagnosis of Autism Spectrum Disorder.
57 Psychometric assessment was conducted to ascertain whether or not you had any intellectual impairment. Your performance, using the SPM assessment tool, placed you in the superior range of non-verbal fluid intelligence, consistent with Autism Spectrum Disorder. Dr Cunningham hypothesised, in general terms, that individuals with Autism Spectrum Disorder can have strengths in non-verbal fluid reasoning and impairments in communication and adaptive behaviour, although he did not specifically address that with respect to you.
58 As you had now been diagnosed with Autism Spectrum Disorder, supportive intervention he said could be accessed by you. In that report, he also said you presented as vulnerable to abuse by peers in a prison environment.
59 You were further assessed by Dr Cunningham on 24 November 2015 for this plea hearing. Following a sexual violence risk assessment you presented as being a moderate risk. I discussed this assessment with Mr Hannebery, in particular Dr Cunningham’s lack of any reference to consideration of your accessing pornography, in particular pornography regarding sleeping females and sexual assaults upon same, immediately prior to this offending.
60
Ultimately, Mr Hannebery conceded that the assessment by Dr Cunningham of you being a moderate risk, was effectively neutral and not mitigatory of sentence, nor aggravating. He said he was not "hanging his hat” on
Dr Cunningham’s assessment of you as a moderate risk of sexual offending.
61 Dr Cunningham concluded you presented with the diagnosis of Autism Spectrum Disorder, with impairments in social interaction and communication, as well as adaptive behaviour. You self-reported difficulty managing your moods and displayed impairments in moral reasoning. I also discussed this with Mr Hannebery and my concerns that it appeared that Dr Cunningham did not have access to the VARE of CB in which CB provided extensive details of not only your offending but of your interactions with her. Such may have provided details of the communication and interactions between yourself and CB at the time you offended against her.
62 Dr Cunningham said you had adapted to the prison environment, albeit had had some difficulty with some prisoners. You were working in prison Monday to Friday from 9.00 am to 3.00 pm.
63 There were two certificates placed before me confirming you have completed programs in custody. Specifically, a Certificate 1 in General Education for Adults and a Certificate 2 in Cleaning Operations, both from Kangan Institute.
64 You received regular visits from your family and intended to live with your father when ultimately released from prison. Your sleep and appetite had normalised by the time of Dr Cunningham’s second assessment, although you continued to have panic attacks and nightmares. You described being fearful of facing the victim and of being ashamed. You were not currently suicidal. You did not meet the criteria for a Paraphilic Disorder. You have also commenced engaging in Buddhist counselling once per week.
65 In Dr Cunningham’s opinion, you presented with impairments in moral reasoning, socio-communicative skills and emotional regulation in the context of the disorder. At the time of this offending he described that you were lonely, isolated and adjusting to the end of your prior relationship. You did not present with insight into the motivations for your offending.
66
I discussed with Mr Hannebery my concerns in relation to Dr Cunningham’s assessment of you, as Mr Hannebery relied upon this as relevant to your moral culpability for this offending. As I have said, it appeared
Dr Cunningham did not have access to the VARE answers of the complainant, nor did he address immediately prior to your offending you looking at the specific pornographic websites. Ultimately, it seemed, Mr Hannebery relied upon any reduction of your moral culpability in a small way. He accepted you understood the wrongfulness of your offending, although urged your undiagnosed disorder meant you lacked a full appreciation of the wrongfulness of your offending. Mr Hannebery conceded that there were a number of impairments to the applicability of R v Verdins (2007) 16 VR 269 relevant to your moral culpability. He conceded that there was no evidence your autism had any "causal link”, as it has been defined within the authorities, to this offending. Ultimately, Mr Hannebery seemed to rely upon your disorder having now been diagnosed, which may assist you to receive appropriate treatment following release. That there was now ‘something’ to work with and the family would be able to assist in that regard. He urged that the latter would mitigate your sentence.
67 I have some difficulty with his submission that such is relevant in mitigation of sentence. In that regard I refer to the recent decisions of DPP v O’Neill[5] and Jesse Wright v The Queen[6]. In my opinion Verdins does not have application in reducing your moral culpability.
[5] [2015] VSCA 325
[6] [2015] VSCA 333
68 There are a number of protective factors identified by Dr Cunningham, including your motivation to engage with rehabilitative services, your supportive family and your understanding of the wrongfulness of your behaviour.
69 Dr Cunningham opined you would be prone to abuse and manipulation in the prison environment, and you would also require mental health monitoring if moved to a new prison. You also would benefit from intervention that considered your Autism Spectrum Disorder.
70 There are a number of references before me and I have read them all.
71 From Karen Aldrich, your sister. She described that all six children were very close, and had a good relationship with your parents. She struggled to understand how your offending had occurred given your family and its background. You had never been involved in any trouble prior to this offending and your offending was out of character. She has visited you at the Melbourne Remand Centre regularly and you had also spoken regularly over the phone. You had displayed remorse and shame for your offending. She referred to your recent diagnosis of Autism Spectrum Disorder, your employment in custody and involvement with Buddhism. You were keen to participate in the Sex Offenders Programs. She would continue to support you. She also acknowledged the severe adverse impact of your offending upon the victim and her family.
72 There was a reference from Patricia Millen, dated 19 November 2015, a relative. Your offending was out of character. Your family continued to support you and would be a guiding force in your life, ensuring you made amends for this offending to become a reliable and positive man.
73 A reference from William Aldrich, your uncle who was shocked to read of your offending as such conduct was out of character. He understood that, following completion of imprisonment, you would return to live with your father and stepmother.
74 A reference from Damian Mountjoy, dated 17 November 2015, who has known your family for 47 years. He was disappointed to hear of your offending. You had expressed remorse for it and took full responsibility for it.
75 I discussed with counsel Mr Mountjoy’s reference to your offending as being a mistake, a categorisation I do not accept, although I understand Mr Mountjoy writing this from a non-legal perspective.
76 A reference from Michael Aldrich, dated 19 November 2015, your brother. Your offending was out of character. You had shown remorse for it and a willingness to right the wrongs you had inflicted. You had taken ownership of your crime. You had a position of trust in the prison. The family would continue to support you. You intend to explore Buddhism. Your attitude in prison was one of maturity.
77 A reference from Catherine Aldrich, dated 20 November 2015 who expressed her acknowledgment of the impact upon the victim and her family of your offending. She described you as remorseful.
78 A reference from Richard Hollins, dated 20 November 2015, married to your half sister. Your family were committed to finding professional help when you are released. You had thought long and hard about your offending and were remorseful.
79 A reference from Alan and Pauline Wiltshire, dated 19 November 2015 who have known your family for 35 years and who were shocked to hear of these charges.
80 A reference from Douglas and Shirley Bult, dated 23 November 2015, family friends. They will continue to support you and your family.
81 A reference from Geoff Rackham, undated, a friend of your father who confirmed that you have a supportive and positive family.
82 A reference from Helen Millen, dated 29 November 2015. Your offending was out of character. They will continue to support you.
83 A reference from Michelle Field, dated 16 November 2015, your aunt, who provided further detail of your background.
84 A reference from Nicholas Lazarou, dated 2 November 2015, partner of your mother. He cannot understand why you would do such a terrible crime. The person he knows is a gentle, honest and kind young man. Your actions are very contrary to the values and morals instilled in you by your family.
85 A reference from Stephen Barnes, undated. This offending is out of character.
86 A reference from Caitanya West, dated 20 November 2015. Your offending is out of character.
87 A reference from Borrett family, undated, who have known your family for 35 years.
88 A reference from Keith Aldrich, dated 17 November 2015, your father. You had never been in any trouble before. Your offending was out of character.
89 A reference from Jacob Aldrich, undated, your brother. You admitted your offending to him and then handed yourself into police. He will continue to support you. You are remorseful for your offending.
90 A reference from Tracie Taylor, dated 19 November 2015, a friend of your mother. You were family orientated, quiet and respectful. Your offending is out of character.
91 A reference from Antoinette MacCormack, dated 16 November 2015, your mother. She cannot understand your offending. You are remorseful for your offending.
92 A reference from Helen Hollins, dated 12 November 2015, your sister. She will support your future rehabilitation. The family takes your offending very seriously.
93 A reference from Nikolaj Helvang, undated. He was in disbelief when he heard of your offending. It was out of character.
94 A reference from John McMahon, undated, a family friend. Your family is supportive of you.
95 A reference from Anthony MacCormack, dated 20 November 2015. He was appalled to hear of your offending. You were never a problem or rebellious child.
96 It is perhaps appropriate to mention that a constant theme throughout the references was an appreciation by the authors of the devastating effect of your offending upon your victim and her family.
97 Also before me, there was a letter written by you (Exhibit 4). In that letter you expressed remorse for your offending and your concern for the victim and her family. You appreciated and understood CB would have been terrified by your offending. You said you were embarrassed, ashamed, guilty and feel like a terrible/bad person for your offending and were prepared to face the consequences of your actions. You were aware you had left yourself and your family down by your offending.
98 There is a Victim Impact Statement from CB, sworn 6 December 2015. There is no doubt CB has suffered considerably, as a direct result of your offending. Her Statement is eloquent and it is difficult to do justice to her statement in these brief sentencing remarks. I have read her statement.
99 CB said she could not believe what was happening to her; that when she woke she thought she was dreaming. Her body was shaking and she was sweating all over. She thought this couldn’t be real, that these things did not happen in real life, but this was worse. Prior to your assault upon her she was a social person. Following your offending, she could not leave her parents. When she went out she cried. Her mind would flash back to what happened to her in the bungalow, and it was hard to leave that’ headspace’ once it entered. She could not stay in public places for very long. It was hard to look at people in the eye, as she felt everyone was after her.
100 She abandoned all of her school friends, not responding to texts or calls from them, not wanting to have to answer their questions and relive your rape of her. She tried to pretend it never happened. She had no interest in seeing anyone as she was unable to deal with her own situation, let alone listen to the life situations of others.
101 Prior to this assault she had a boyfriend whom she “loved”. Following your offending she broke up with him. She felt she totally abandoned him, despite his efforts to support her.
102 Prior to your rape of her she was working at a fruit shop. She was not able to attend work for some time as a result of your offending and when she eventually returned to work she could not get anything done properly. Prior to your rape she understood the importance of studying, however afterward your offending, she could not open a book of any sort for about three weeks. She was sensitive about returning to study and even thinking about it set her off in tears. She tried to avoid going back to the memories in the bungalow by trying to stay completely distracted by streaming social media, looking at cat pictures and videos. She had difficulty sleeping. She could not return to studying at her full potential.
103 Her family had been very supportive of her, but your offending had put a lot of pressure on them all. She felt she had lost communication with both CJ and BJ. Life for her would never be normal again. She had become very dependent on CJ and BJ. She has found she had not been able to move on, dwelling on her own thoughts and past events, not smiling or enjoying herself. Prior to your attack upon her, she never thought twice about her safety. That had changed as a result of your offending.
104 Prior to your attack, she used to sleep easily. Your attack upon her changed all of that. She had difficulty sleeping at night, waking up and crying. There were nightmares and she was waking in cold sweats and tears.
105 Before the attack upon her she had a pretty healthy lifestyle. After that she could not go out to run, or out on dates with her friends, or to school. While she did not want to be alone, the idea of spending time with other people was worse. She felt worthless and weak for not being able to stand up for herself when you were offending against her. She had so many unanswered questions, including why you chose her.
106 A number of authorities have referred to the effects of crime upon a victim, including DPP v Toomey[7], in which his Honour Justice Vincent referred to social rehabilitation citing DPP v DJK[8] (allowing again for the difference in factual circumstances to the present case):
“ …each of the victims, including N, asserted in their victim impact statements that the effect of the offending upon him was to "profoundly and permanently psychologically [scar] him and in a tangible way, has affected many aspects of [his] behaviour". With respect to those statements, I repeat comments that I have made as a sentencing judge on more than one occasion. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who would of necessity have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.
This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognize the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.
[7] [2006] VSCA 90
[8] (2003) VSCA 109, paras 17 & 18
107 The effects upon the victim are a relevant sentencing consideration, see s5 (Sentencing Act 1991). I am conscious, however, I must not allow the effects upon a victim to swamp the sentencing process.
108 Reference was made by Mr Hannebery to current sentencing practices. He acknowledged that the facts in your offending made it difficult to find closely comparable cases. I also discussed sentencing snapshots with Mr Hannebery and that whilst, of course, they are relevant and matters I must consider, there are a large number of factors which are not clear from the statistics. It is also difficult comparing cases factually, as facts vary enormously case to case, as do all matters in mitigation of an offender. Ultimately, I must determine the appropriate sentence based on all relevant sentencing considerations including the gravity of your offending and all matters personal to you in mitigation of sentence. I also note the maximum penalty of 25 years applicable to the offences of aggravated burglary and rape is indicative of the seriousness with which Parliament regards this offending.
109 You were remanded into custody on 23 May 2015, having spent three days in the Melbourne Custody Centre and were currently in protective custody. I accept, given your age and the nature of this offending, it is likely that you will remain in protective custody. I have taken that into account when determining sentence, however I am mindful your status following sentence is to a degree speculative.
110 In R v Males[9], his Honour Acting Court of Appeal Justice Whelan stated that where a prisoner is being held in protective custody, that is a factor relevant to sentence. ‘The extent to which it is to be taken into account in the person’s favour depends upon the source of the need for protection and upon the particular circumstances and likely duration of the protection.”
[9] [2007] VSCA 302
111 Further, his Honour Court of Appeal Justice Kellam in Males stated:
“The circumstances of protective custody can vary significantly. There are prisoners in protective custody in high security prisons … . There are prisoners in protective custody which cater entirely for prisoners with a protected status … . It is incumbent upon counsel for both the prosecution and defence to provide such information as is available as to the true circumstances of the protective custody and the actual hardship such custody is likely to cause, if a submission is made before a sentencing judge that such a matter is relevant to the sentencing task faced by the judge.”
112 Whilst you are currently in protection whilst on remand, it is unclear what your status will be following sentence, it may be you are managed in a prison with prisoners with similar offending.
113 I discussed with Mr Hannebery, when sentencing in relation to Charge 2, whether R vSBL[10] was still the relevant authority. He agreed it was. I further discussed with both counsel the decisions that have subsequently considered SBL, see DPP v HPW[11], DPP v EB[12] and DP v The Queen[13]. This list is not exhaustive.
[10] [1999] 1 VR 706
[11] [2011] VSCA 88
[12] (2008) 186 A Crim R 314
[13] [2011] VSCA 1
114 Mr Hannebery conceded that an immediate term of imprisonment was the only appropriate disposition, with a non-parole period set. Such was an appropriate concession.
115 Ms Borg, who appeared for the prosecution, also prepared written submissions and addressed those during the course of your plea hearing.
116 Ms Borg submitted that your offending was serious. I agree.
117 Ms Borg submitted your offending involved planning, and referred to your attendance at the property on 17 May, and six and a half hours prior to this offending you searched the internet looking at “how easy people wake up”, amongst others. You also viewed a number of videos relating to sleeping girls with titles indicating digital penetration.
118 Also, that prior to your offending, you attended the victim’s address and were there for about an hour. When confronted by BJ, you calmly told him you had not been down the side of the house.
119 Then again, in the two hours prior to your offending, you watched pornographic videos involving spying on sleeping girls and/or sexual activity with a sleeping girl before returning to the property at 1.34am, where you entered the victim’s bedroom and remained for a two hour period. There was, in my opinion, significant preplanning in your offending.
120 Ms Borg submitted that throughout your offending you were aware of the seriousness of it and knew your offending was wrong, evidenced by your lying to BJ about whether you were at the property. I agree.
121 Mr Borg also referred to you telling the victim you had a knife, although I note there was no knife ever produced or viewed by the victim. You threatened you had one in order to keep CB subdued and compliant.
122 While it was conceded by Ms Borg that you did not ‘punch’ CB, you were “quite rough” when digitally penetrating her and that the rape charge lasted for approximately eight to nine minutes, which she submitted was a very long time for CB to be subjected to your rape of her. I agree.
123 Ms Borg submitted your photographing of CB’s genital area was degrading and humiliating to CB.
124 Ms Borg referred to you asking CB as you were sexually abusing her, if she had been sexually abused previously. She said she had and you acknowledged that with the response “Well, that’s unfortunate, isn’t it?” You well knew your offending was wrong. Further, Ms Borg submitted you were aware what you were doing was wrong, as you apologised to CB on a number of occasions whilst assaulting her.
125 Further, Ms Borg submitted the questions asked by you of CB, showed you were aware what you were doing may be traumatic for her, yet ignored her responses and continued to offend.
126 Ms Borg also referred to the brazenness of your offending, given the family was in the main residence. Also that your offending against CB occurred in her own home, where she had the right to feel safe.
127 Turning to your age, Ms Borg conceded the potential for a young offender to be “redeemed and rehabilitated” was important.
128 Ms Borg conceded your plea of guilty was entered at the earliest opportunity at a committal mention 21 August 2015, and that you did not have any prior convictions. The prosecution accepted you had expressed remorse and shame for your offending.
129 Ms Borg submitted that the principles in Verdins did not apply. She referred at the plea hearing to the decision of O’Neill and the lack of any realistic connection between the impairment to mental functioning and your moral culpability that there was sufficient material before me to indicate that you were well aware of the wrongfulness of your offending.
130 Following the plea hearing, Ms Borg forwarded to me written submissions and the recent Court of Appeal decision of Jesse Wright, in support of her submission that the principles in Verdins did not apply in your case.
131 Mr Hannebery, in an email regarding Ms Borg’s email stated he did not intend to make any further submissions prior to sentence.
132 I have read that decision also.
133 I am not satisfied that the principles in Verdins have been met in this case, in particular, in light of the recent decision of O’Neill, paragraphs (35-93) and (96-100), and the decision of Jesse Wright. The reports of Dr Cunningham do not establish the relevant nexus between your Autism Spectrum Disorder and your moral culpability from the offending. As previously stated, there are significant matters to which Dr Cunningham has not referred.
134 However, I do accept that you will, as part of the general sentencing principles, find imprisonment more difficult than other prisoners, particularly in light of your attempts at self harm whilst in custody and your young age.
135 Ms Borg submitted there was a need for specific deterrence when sentencing you, given the level of planning and the duration over which it occurred. I agree.
136 Ms Borg also submitted general deterrence was of great importance when sentencing and that protection of the community is paramount. I agree.
137 Of concern, was your random selection of a teenage girl you did not know for your offending. As previously stated, I have also not received a great deal of comfort from the conclusion of Dr Cunningham that you are a moderate risk of sexual offending. While I cannot conclude any specific assessment, I am concerned about material not taken into account by Dr Cunningham, or certainly not referred to by Dr Cunningham, when preparing the reports.
138 She submitted there needed to be both denunciation and punishment reflected in the sentence I impose. I agree.
139 Ms Borg also submitted that the impact upon the victim, CB, had been significant, with a number of negative impacts upon her life as a direct result of your offending.
140 As well as matters personal to you, including your prospects of rehabilitation, as I find them to be and to which I have previously referred, I must also take into account general deterrence which is an important sentencing consideration in this case.
141 There is also a need for specific deterrence when sentencing you, given the planning involved in your offending and the period of time over which your offending occurred.
142 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of you re-offending. This continues to cause me concern.
143 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment. The very magnitude of your crime demands a sentence of some substance.
144 When sentencing I have taken into account the principles of totality and proportionality.
145 I sentence you as follows.
146 On Charge 1, you are convicted and sentenced to 4 years’ imprisonment.
147 On Charge 2, you are convicted and sentenced to 6 years’ imprisonment.
148 On Charge 3, you are convicted and sentenced to 18 months’ imprisonment.
149 On Charge 4, you are convicted and sentenced to 18 months’ imprisonment.
150 On Charge 5, you are convicted and sentenced to 18 months’ imprisonment.
151 Charge 2 is the base sentence and I order the following by way of cumulation and concurrency:
152 I direct that 12 months of Charge 1 be served cumulatively upon Charge 2.
153 I direct that 6 months of Charge 3 be served cumulatively upon Charge 2.
154 I direct that 6 months of Charge 4 be served cumulatively upon Charge 2.
155 I direct 6 months of Charge 5 be served cumulatively upon Charge 2.
156 That results in a total effective sentence of 8 years and 6 months’ imprisonment and I direct that you serve a period of 5 years before you are eligible for parole.
157 In setting the non-parole period, I am mindful of the decision of R v VZ[14] in which Callaway JA stated:
“A non-parole period cannot be fixed unthinkingly by some such method as taking two years, or one-third or one-quarter, off the head sentence. All the relevant factors have to be taken into account. They are many and varied. I mention only three of them, because they bear on this case. The first is that a non-parole period has a penal element. The second is that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period. The third is that a prisoner’s prospects of rehabilitation are almost always a significant consideration.”
[14] (1998) 7 VR 693
158 Pursuant to s6AAA Sentencing Act 1991, had you been found guilty of these charges following jury verdict, I would have sentenced you to a term of imprisonment of 10 years and 6 months and set a non-parole period of 8 years
159 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 208 days in custody by way of pre-sentence detention, up to and including 16 December 2015, and that this be entered into the records of the court.
160 I direct it be entered into the records of the Court you are subject to the Sex Offenders Registration Act 2004. By virtue of your plea of guilty to aggravated burglary, a Class 2 offence, rape, a Class 1 offence and indecent assault, a Class 2 offence, upon being sentenced for both Class 1 and 2 offences, you automatically become a registrable offender and are obliged to comply with the reporting conditions for life. Mr Hannebery conceded such applied to you and for life. My associate will approach you in a moment to sign acknowledging receipt of the documents that relate to that registration. You are not being asked whether or not you want to be subject to that Act. I have made the order. You are simply being asked to acknowledge receipt of the paperwork. In the end it is up to you whether or not you sign it.
161 For completeness only, I state you have not been sentenced as a serious sexual offender.
162 Any other orders?
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Confirm no order under s464ZF – as already been taken.
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