Director of Public Prosecutions v Allan (a pseudonym)

[2015] VCC 1850

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00976

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMUEL ALLAN (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 December 2015
CASE MAY BE CITED AS:	DPP v Allan (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2015] VCC 1850

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

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APPEARANCES:	Counsel	Solicitors
For the Accused	Mr S. Ginsbourg
For the Director of Public Prosecutions	Ms M. Stylianou

HIS HONOUR:

1Samuel Allan[1], you have pleaded guilty to an indictment charging you with an offence of committing an act of sexual penetration with a child under the age of 16 years, in that you introduced your penis into his anus.  At the time of the offence he was under the age of 12 years.  Indeed he was seven years at the time of the offending conduct.

[1]Samuel Allan is a pseudonym.

2The prosecution tendered and relied upon a summary of prosecution opening for the plea hearing and that is Exhibit A on the plea.  It was read when this matter came before me on 25 September of this year and I shall not read it again.  However, the document sets out circumstances in which the offending conduct occurred by way of an explanation of the representative nature of the charges which encompass four instances over a period of a few days in December 2014 when you introduced your penis into the anus of your victim.

3You were trusted to babysit your victim.  He was seven years of age.  You were aged 20 at the time of the offending conduct.  You took advantage of the age gap between the two of you and induced him to comply with your wishes. 

4When he alerted family members to what had occurred, you made some admissions against interest but were less than frank in your explanation as to what had occurred, and that is, I think, putting it favourably to you.

5You have no prior convictions.  You are still a young man and that is relevant when it comes to determining sentence in this case.

6The prosecution also tendered Victim Impact Statements of your primary victim and Katie Allan[2], his mother, which show the emotional effect upon each of them of your conduct. 

[2]Katie Allan is a pseudonym.

7You have expressed remorse since then in a number of different ways and I accept that you are now remorseful.  You should, and I am sure you are, be ashamed of what you did.  It will have a lasting impression, not just on this young boy but upon his mother.  You have created a life-long turmoil in their lives as a result of your conduct.

8I was provided by your counsel with an outline of submissions on your behalf and they set out in succinct terms the things that can be said on your behalf.  The outline of submissions is Exhibit 1 on the plea.  Mr Ginsbourg also provided me with a psychological report of Mr Jeffrey Cummins which is Exhibit 2.  That report of Mr Cummins tells me a deal about your background history, about your education and what you have done since you finished Year 10 at school.  It seems, for various reasons, that you did not have the happiest start to life in your schooling or in your attempted apprenticeship, and indeed in your endeavours to improve your education through the Kangan Institute. 

9You have over a period of years, developed a cannabis habit which seems to have made you into something of a recluse.  You have clearly put on a lot of weight and have, for various reasons, not felt able to find regular work and to engage as a productive member of the community. 

10That is the context in which this offending occurred.  What you did was a gross breach of trust.  You would understand that.  That makes the offending conduct particularly serious.  Offences of this kind are always to be regarded as serious and must attract a substantial term of imprisonment.  However, you are only 21 now, 20 at the time of the offending, and according to Mr Cummins' report you are immature in many respects.  I get the impression that you are something of a lonely figure.  You have never had a fulfilling relationship with a woman or indeed with another adult, and there are various emotional disturbances that are referred to in Mr Cummins' report. 

11It is not submitted on your behalf that the Verdins principles apply in this case and I take the matters to which Mr Cummins refers as part of the general context in which the offending occurred.

12You have pleaded guilty, and although it was a late plea and although it did not save the primary victim from the stress of having to prepare at least to give evidence at your trial, it did come at a time before he gave that evidence and at least saved him that trauma of having to go through with the case.  You are to be given credit for your plea of guilty, for saving the cost of a trial and facilitating the interests of justice and it is consistent with the remorse that I have already indicated I accept you have shown in other ways.

13For a person of your age the courts are anxious to facilitate rehabilitation as much as they reasonably can, but offences of this kind must attract sentences that have a capacity to deter not just you but others from committing offences of this kind.

14Mr Cummins rates your level of risk of reoffending as low to moderate and I accept that that opinion is well-founded. 

15I would expect that you have learnt a very stern lesson from this and that this will be sufficient incentive to you to stay out of trouble in the future.  You, I think, have therefore, reasonable to good prospects of rehabilitation.  It would be a very good thing if you could get yourself off cannabis and perhaps to continue with the psychological counselling which you engaged in in 2013.  That will assist you to find a brighter future when you complete your sentence.

16I am not going to prolong this because I know you are anxious about the outcome.  I have to balance the need to punish you adequately, to denounce conduct of this kind, to deter you to the extent necessary and to impose a sentence that has the capacity to deter others, at the same time paying proper regard to your rehabilitation.  That is particularly so given your young age and the age at which these offences were committed.

17The offending occurred over a relatively short period of time and you have pleaded guilty to one single offence.  I have to take into account the other acts which form the underpinning of the representative charge, including the acts referred to in paragraph 11 of the prosecution opening, which involved you getting Jeremy[3] to masturbate his penis.  I do that just simply by way of providing a context in which the offence occurred.  It is an offence which cannot be said to have been an isolated aberration and therefore the other instances which go to make up the representative count of sexual penetration are to be seen as providing a full context to your offending conduct, and I approach sentencing accordingly.

[3]Jeremy is a pseudonym.

18I take into account the fact that this is your first offence.  You have been in custody now for a fairly significant period of time, 176 days.  That time has not been easy because you have been in protection, and you have been subject to a more significantly strict regime within the prison system than otherwise would have occurred.  I take that into account in assessing an appropriate sentence.

19A lot of the debates during the course of the plea revolved around the question of whether I was required to take into account the baseline sentencing provisions.  It is now conceded that I should not do so and that I should sentence you without reference to those provisions.

20I was provided by the prosecution with tables of cases which might be said to be at least broadly similar to your case.  I note, of course, that every case has to be determined on its own facts, and whilst they assist me to identify a band or a range of sentences that would be appropriate having regard to current sentencing practice, I deal with your case on the facts particular to your case.

21I am now ready to impose sentence upon you so would you please stand.

22On the charge on the indictment, I convict and sentence you to imprisonment for a period of 35 months.  I order that you serve a period of 23 months' imprisonment before you become eligible for parole.  But for your plea of guilty I would have imposed a sentence of 48 months and ordered you serve a period of 32 months before becoming eligible for parole.

23I declare 176 days pre-sentence detention as time served on the sentence that I have just imposed, to be deducted administratively from that sentence, and I order that that be noted in the records of the court. 

24I make the order for the provision of a forensic sample by the scraping from the inside of your mouth that was sought on the previous occasion.  That order will be put into effect whilst you are in custody and you will be requested to provide a scraping from the inside of your mouth.  If you do that then that is the end of the matter.  If, however, you fail or refuse to do so when asked by an authorised officer, the authorised officer would be authorised also to take blood from you and may use reasonable force to obtain that blood sample.  I am sure you will not put them to that trouble.

25Are there any other orders that I need to make?

26MS STYLIANOU: Your Honour, the Sex Offenders Registration Act also applies.

27HIS HONOUR:  Yes, that's right. 

28I note that you, by your plea, are to be placed on the Sex Offenders Register for a period of 15 years and you will be provided with a document that sets out your obligations under that legislation.

29Take a seat, would you, and that document will be provided to you in a minute.

30I have signed those orders Ms Stylianou.

31MS STYLIANOU:  Thank you, Your Honour.

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