Director of Public Prosecutions v Allitt

[2015] VCC 1941

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

AT GEELONG
CRIMINAL JURISDICTION

CR-14-01694

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN JOHN ALLITT

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Geelong
DATE OF HEARING:	20 March 2015
DATE OF SENTENCE:	20 March 2015
CASE MAY BE CITED AS:	DPP v Allitt
MEDIUM NEUTRAL CITATION:	[2015] VCC 1941

REASONS FOR SENTENCE
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Subject:        Sexual penetration of a child under 16 years (x2)

Sentence:Community Corrections Order – 12 months – treatment and rehabilitation – community work – supervision – Sex Offender Registry for life – without conviction on both charges.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. A. Flynn	O.P.P
For the Accused	Mr A. Zingler	Robert Stary Lawyers

1HIS HONOUR:  Mr Allitt, you have pleaded guilty to two counts of sexual penetration of a child under the age of 16. The maximum penalty 10 years' imprisonment. 

2The circumstances of the two offences were set out in the Crown opening which was not contested by your Counsel and which was read in open Court earlier today.  I incorporate it by reference and will not repeat it in any detail. 

3You had been in a relationship with the first complainant for a couple of years and you had met her in the course of your leisure activities in basketball.  You had been told by her mother not to take the matter any further. 

4On this occasion, she and her friend having moved from the Geelong area up to Ballarat for school were back in Geelong over the long weekend.  You obviously arranged for the two of them to meet you and you went in your car to the Rippleside Park area here in Geelong.  Then, you proceeded to give the girls alcohol and then proceeded first to have intercourse with the first complainant and then with the second complainant.   Each was aged fourteen.

5The matter was then reported by the two girls to their school when they returned back to boarding school and the matter was brought to the attention of the parents and the police and you were the subject of a record of interview where you made full admission as to the sexual conduct with the two girls.

Seriousness of the offences

6The two offences arise out of the single course of conduct on the one evening where the second girl effectively participated after the first girl.  Premature sexual conduct involving underage girls is, by definition, bad for them.  That makes it a serious offence.  Provision of alcohol makes it worse.  Neither of them have chosen, although they have been offered, to file a Victim Impact Statement but I take account of the fact that it is likely to have had an impact on them.

Seriousness of the offending

7There was a reasonable age gap between you - a chronological age gap of five years.  You were aged 19. They were under 16.  You had been, in some form of relationship with one of them.  You provided them with alcohol.  It is a serious offending.

8You come before the Court for the first time with the support of your parents, no prior convictions - it is your first appearance.  You come from a good family.  I have a reference from your mother.  I would not expect it to be anything other than good but there is material in it that indicates that you have been a good citizen, a good person to date – considering your involvement in the community in basketball, basketball refereeing around Victoria which is something that you are to be admired for.  You have obviously got good prospects and you have already shown that you are prepared to do something out of the ordinary for your community.

9That is also confirmed in the second reference from a long term family friend who indicates he has known the family for some 30 years and he says that, "Your devotion to sports is undeniable and he has assisted clubs throughout the division through the provision of volunteer training and umpiring services to junior teams taking the time to share his knowledge and skills to develop others."

10There is a third reference from another family friend, who is now living in Brisbane, to the same effect - that you have a community spirit.  You have devoted many hours of the week to basketball.  You make yourself available for other children's games.  All that indicates that you are a person of good character who put into the community to date in your short life, aged 20. 

11The next matter in mitigation to consider is remorse.  That is evidenced in that you have made full admissions to the police.  You have co-operated.  You have pleaded guilty at the first, earliest opportunity. I have to take that into account, and you made full admissions when you were interviewed by the police.

12In addition to that, you do have victim empathy, an important factor in remorse and in sentencing.  You have insight and you have now reflected on this and you realise what you did was wrong.  That is very important for going forward in your adult life. 

13The remorse is confirmed in the three references that have been tendered on your behalf and also in the report of Mr Patrick Newton, Forensic Psychologist. 

14The report of Mr Newton filed by your Counsel, who has also made a comprehensive written submission which I have left on the file, is a very important document in considering the appropriate disposition in this matter. 

15It is clear from the report of Mr Newton that although you were aged 19 at the time - you have now just turned 20 - in fact, you are relatively or very immature.  When discussing your immaturity he says that your attachment style remains formative and quasi-adolescent,  more in keeping with that of a much younger teenager.  .

16He refers to you being a very immature individual.  He then refers to your chronic suffering from immaturity, reinforced by your chronic loneliness.  He says, "These views, combined with his own immaturity and reinforced by his chronic loneliness, his poor social skills and infatuation with the first complainant, underpinned his offending behaviour.  That is, perceiving her and the second complainant to be as mature as he was, he felt free to pursue his own gratification and pleasure by allowing the relationship with the first complainant to become sexualised."

17What he says is that the factor that has led to this offending - was, in fact, your immaturity.  You thought that you were mature, as mature as the two girls, but in fact you were not. 

18Mr Newton says in his conclusion, "Mr Allitt remains an immature man who is still in the process of forming his final identity and determining his views on major life issues.  While he has high needs for affiliation, support and nurturance he is socially awkward and lacks the skills necessary to establish and maintain mature intimacy."  Then he refers, "He has suffered repeated experiences of ostracism, harassment and alienation which has been deeply distressing and left him unsure of himself and socially anxious."

19That is a reference to some problems you had with a stutter in the course of your school, and the fact that you were the subject of bullying, and Mr Newton also notes that you had not been the subject of any mental health or psychological assistance in going through your teenage years.

20All those matters indicate that you are a young man, a man that is younger than your chronological years brought before the Court for the first time for these two serious offences. 

21The appellate Courts have said that youth is a very important consideration.  You are a young offender as defined under the Sentencing Act1991 (Vic) and under the Children Youth and Families Act 2005 (Vic) rehabilitation is the most important sentencing consideration for you.

22In your case, although, as I said, you are now 20 it is clear that at the time of the offence you were 19 but you were only around 15 or 16 in maturity.  That is what Mr Newton says, that you thought you were about the same maturity as these two young women.

23The Court of Appeal in a recent guideline judgment of Boulton v The Queen [2014] VSCA 342 has indicated that Community Corrections Orders at paragraph 9 of the guideline, "A CCO is likely to be a particularly important sentencing option in the case of a young offender where there may be a perceived conflict between the need to punish the offender and the importance both for the community and to the offender of rehabilitating the offender. Since the CCO can be used to rehabilitate and punish simultaneously the conflict is likely to be reduced. Instead of needing to give less weight to denunciation or specific or general deterrence in order to promote the young offender's rehabilitation the Court will be able to fashion a CCO which adequately achieves all the purposes, all those purposes at once."

24The learned Prosecutor in this matter has indicated in a fair and helpful submission that the CCO in this case would be within an appropriate sentencing range. 

25I should also make reference to your occupational position.  You managed to achieve VCE but it appears from Mr Newton's analysis that you did not get a very high score and that you have been unable to move into post-secondary occupation or education.

26You have been working three days a week in the hospitality industry and I commend you for that.  That indicates you are making the transition but, as he said, your personality at this stage is not fully formed.  You have not made that transition into adulthood.  I am not being critical of that but that is a relevant factor in looking at the overall mix in sentencing here.

Purposes of sentencing

27The basic purposes for which a Court may impose a sentence are punishment, deterrence - both specific and general, rehabilitation, denunciation and protection of the community. In sentencing I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims if any. I am required to balance the interest of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society. 

28As I said before, the Court of Appeal in another case, Mills, has indicated that young offender's rehabilitation is to be the primary sentencing objective, in a sense over-riding issues of general deterrence and even specific deterrence.  Specific deterrence is a lesser weight here given that you are a first offender and Mr Newton indicates that you have good prospects if you have an appropriate sex offender program attached to a Community Corrections Order. 

29Weighing all those matters I am of the view that it is in the community interest that you be placed on a Community Corrections Order in order to ensure that you address the lapse that has occurred in this particular case, that you are under a form of supervision so that can occur within the community over a period.  Mr Newton says that you need it and to allow this transition to adulthood to occur.

30I invited Counsel to make submissions as to whether or not this disposition should be with or without conviction and your Counsel has submitted that it should be without the entry of a conviction.  The Prosecutor, on the other hand, submitted that considerations of general deterrence and denunciation require the entry of a conviction as appropriate.  I have thought about this, before I invited those submissions and I regard you as a very vulnerable individual. 

31Your mother, in her letter to the Court and the other references has indicated the impact that this offending has already had on you because you were unable to continue in the basketball umpiring and also you have been suffering from anxiety since this matter was brought over the last nearly 12 months.

32Mr Newton also says that you are a vulnerable sort of individual and he indicates that you have got to make this transition to adulthood particularly in an occupational field.  You are only working for three days a week.  For a 20 year old, that is not enough. 

33I have thought enough about this to decide that I am going to take the relatively rare decision to not enter convictions against you in relation to these matters on you entering of a Community Corrections Order. I am entitled to do this as a discretionary matter under s.8 of the Sentencing Act.

34Weighing all the factors, and in particular the issue of the occupational disability for you associated with the entry of the conviction of a young man at your age with your immaturity, and offending that has occurred when you have,  effectively, an intellectual age in the mid-teens range according to Mr Newton, and with a good character and the contributions that you have made to the community which you are entitled to draw on when you do come before a Court for the first time.  

35For those who say that I should, having regard to the serious offences, they might even be angry and concerned about the victims in relation to that, but more thoughtful members of the community will see that the longer term interests of the community will be advanced by a disposition including the issue of a non-entry of a conviction that focuses on your rehabilitation rather than dogmatic punishment.  Because, in the long term you have got to put this behind you.  It is clear that you have been trying to.  You are remorseful about it, you are anxious about it and you should move forward into adulthood with all the assistance you can get from your family who, I note, are here to support you. 

36For all those reasons, I am exercising my discretion not to enter a conviction in relation to these two offences.  I have taken into account that this is a single course of conduct - that evening with the two complainants.

37The terms of the Community Corrections Order that I am going to impose on you: it is for a period of two years which for a 20 year old is probably a hell of a long time but that is what it is. 

38For the next two years, you are going to be on a Community Corrections Order.  There is going to be a term on that order that you are going to have to do 100 hours of community work over that two year period.  In addition to that, you are under the supervision of the Office of Corrections, here in Geelong which means you have got to obey directions of the manager.

39In addition to that, you are to engage in any treatment for drug and alcohol testing or treatment as they might require. In addition to that, you are to undertake a sex offender program which they will arrange for you to do and any other courses that they deem that you require.

40It is important that I explain to you that for the next two years if you commit an offence carrying a term of imprisonment that breaches the Community Corrections Order and, indeed, is an offence in its own right, carrying a three month gaol sentence so, you are on a good behaviour bond, effectively, for two years and if you breach it, if you do not turn up on supervision, when you are told to go to a meeting or have a meeting, you do not turn up and do your community work they arrange for you, or if they arrange for a course to understand that recreational drugs are bad for you and you do not turn up for that, or if you do not turn up to the sex offender course that they will book you into, that is a breach of the Community Corrections Order and you will come back before me and I will come down from Melbourne, give you a big lecture and I will re-sentence you for this offending.

41The whole idea of this is to give you the one chance. People in life do fall and if at all possible Courts want to give them that one chance and, because of the investment you have put into the community so far, the strength and support of your family, the circumstances and your psychological background as identified by Mr Newton, I regard it as appropriate to give you the one chance. 

42I am going to stand down for a moment to prepare the Community Corrections Order, just have it checked by Counsel and explained to you by your Counsel and then I will reconvene the Court.

43There are two other points.  One is that I am going to order that  you provide a forensic sample which means a mouth scraping, you do go onto a database.  In addition to that, as the learned Prosecutor indicated, as a consequence, it is not relevant to the sentence, it is a consequence of the findings of guilt of these two offences you go on the Sex Offender Register for life.  Which means that every time you change your mobile phone, get a tattoo, change your address, your car rego, everything like that you have got to notify the register.  It is an onerous obligation not relevant to sentencing but you have got to comply with that for life.  I will stand down while the Community Corrections Order is prepared.

44(Short adjournment.)

45HIS HONOUR:  Mr Allitt, you have signed the Community Corrections Order  and no doubt your Counsel has explained it to you.  To say that these are regarded by the Courts and the Court of Appeal as onerous orders and they are seen as an alternative to prison. 

46They are to be used by the Courts when rehabilitation of the offender is to be seen as the primary sentencing aim and the combination of the requirement that you do not commit an offence for the two years, plus you engage in the courses as directed by the manager and also the sex offender course is what I am trying to achieve here to rehabilitate you into the community, allow you to progress into adulthood through what is regarded as a serious punishment in the Community Corrections Order and, in the exceptional case as I have indicated where you are so immature, I do not want to damage your future employment prospects by entering a conviction in relation to the two offences.

47I have indicated that I am proposing to require you to provide a forensic sample.  You go on the database for that.  I have also signed the sex offender document so you are on the sex offender database for life.  You have probably got a life expectancy of 70 years at this age, it is a long time.

48I declare pursuant to s.6AAA if you had not pleaded guilty I would have convicted you and imposed a two year youth attendance order on you.

49Are there any other matters, Madam Prosecutor?

50MS FLYNN:  No, thank you, Your Honour.

51HIS HONOUR:  I have signed these forms.  I will hand them down.    You are required to turn up at the Community Corrections office within two days, Mr Allitt.  Also, sign the sex offender forms when you receive them from my Associate.

52I want to thank you for your assistance, Mr Zingler, for your submissions.  Thank you, Madam Prosecutor for the week. 

53MS FLYNN:  Your Honour.

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