Director of Public Prosecutions v Arvanitis
[2024] VCC 33
•29 January 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02329
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CON ARVANITIS |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 September 2023 (Plea) | |
DATE OF SENTENCE: | 29 January 2024 | |
CASE MAY BE CITED AS: | DPP v Arvanitis | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 33 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Supply of drug of dependence to a child (rolled up charge), sexual penetration child under 16 (rolled up charge), complainant only 14 at the of offending, provision of methamphetamine and later protracted degrading sexual activities visited upon complainant, catastrophic effects on victim. Initial denials of offending, but early plea of guilty. Grave offending. Accused in 40’s, on CCO at time of offending, relevant prior history for providing drugs to child under 16 but not for sexual offending, childhood and adolescent complicated by physical abnormalities resulting in dysfunction and alter drug dependence, Verdins application, plea of guilty during pandemic, standard sentencing, rolled up counts, totality, general and specific deterrence, denunciation and protection of community.
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Drugs Poisons and Controlled Substances Act 1981 (Vic); Sex Offenders Registration Act 2004 (Vic); Interpretation of Legislation Act1984 (Vic).
Cases Cited:Sims v The Queen [2022] VSCA 114; Clarkson v The Queen [2011] VSCA 157; Adamson v The Queen[2015] VSCA 194; Pearce v The Queen (1998) 194 CLR 610; R v Lomax [1981] 1 VR; DPP v Tewksbury (a pseudonym) [2018] VSCA 38; DPP v Elfata [2019] VSCA 63; DPP v MacArthur [2019] VSCA 71; R v Brown[2002] VSCA 207; DPP vCoffey [1999] VSCA 146; Heathcote (a pseudonym) v The Queen [2014] VSCA 37; Wakim v The Queen [2016] VSCA 301; DPP v Cooper [2018] VSCA 21; Reid ( a pseudonym) v The Queen [2014] VSCA 145; R v Verdins (2007) 16 VR 269; Worboyes v The Queen [2021] VSCA 169; Brown v The Queen [2019] 59 VR 462; R v Beary [2004] VSCA 229; Mill v The Queen [1988] HCA 70; DPP v Pan [2022] VSCA 98; Power v The Queen [1974] HCA 26; DPP v Spottiswood [2021] VSCA 146; DPP v Dalgliesh [2017] HCA 41; DPP v Hum (a pseudonym) [2022] VSCA 57.
Sentence: TES of 7 years 10 months, with NPP of 4 years 9 months.
s.6AAA TES 9 years 10 months, with NPP of 6 years 10 months
PSD 542 days
SORA Registered for 15 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms G. McMaster | Office of Public Prosecutions |
| For the Offender | Mr W. Blake | Chris McLennan & Co |
HIS HONOUR:
INTRODUCTION
1On two occasions, being 17 June 2022 and 4 August 2022, you Con Arvanitis sexually assaulted and supplied drugs of dependence to a child who I will call Grace[1] who was then 14 years of age.
[1]A pseudonym.
2At the time of the offending Grace was a particularly vulnerable child who resided in the care of the Department of Families Fairness and Housing (DFFH).
3You lived alone in Footscray in a property owned by your grandmother. You were 43 years of age, close to 30 years older than your victim.
4Your conduct is a serious example of serious offending.[2] Nothing less than a substantial term of imprisonment with a non-parole period will satisfy all relevant sentencing considerations in this case. The duration and structure of that sentence is explained in the reasons that follow.
[2]Conceded from the very outset, quite sensibly, by your Counsel (see Exhibit 1- Outline of Plea Submissions dated 11 September 2023 at [6]).
5I wish to make it known now though that I received tremendous assistance in this case by counsel for the DPP, Ms McMaster, and your counsel, Mr Blake. Their submissions (and concessions where appropriate) were well informed, articulate and sensible. Each counsel served their respective clients particularly well and the court was the beneficiary of their endeavour.
BACKGROUND[3]
[3]Taken from agreed set of facts -Exhibit A- Summary of Prosecution Opening for Plea dated 7 September 2023.
Relationship with victim
6On 16 June 2022, you met the victim electronically, using the application 'MeetMe', a location-based dating application. In her VARE[4] the victim stated:
'Q: All right, tell me everything you can about how you met Con.
A: I met Con through MeetMe, it’s like Skout, and it’s where – it’s like a dating app but it’s mainly selled off drugs and you don’t really know who anyone is. I met Con around the 26th – no, 16th of June and he – I gave him my Snapchat to start with.'
[4]Transcript of VARE conducted on 4 August 2022, Q/A 26 (‘VARE’).
7The 'MeetMe' application is commonly utilised for the sale and distribution of drugs. You both then continued to communicate electronically and later changed the platform of communication from 'MeetMe' to 'Snapchat'.
8The victim explicitly told you that she was 14 years of age[5] as she told police:
'A: … I told him I was 14.
Q: So tell me about how you told him you were 14?
A: ‘Cause on Snapchat we just asked how old were you – like, each other was. Like, when – before he blocked me and the first time meeting him obviously.
Q: Yep.
A: But then I said straight out, 'I’m 14,' and he didn’t really care but when I met him he just kept guessing I was 18 and he – like, I look like my age but he didn’t really seem to care. And the for the first time I was - - -
Q: So when he was saying and guessing you were 18 did you tell him you were 14 again?
A: Yes, and then I just stopped afterwards because I've clearly elaborated to him.'
[5]Ibid Q/A 38, 39 and 40.
9As a result of conversing on the two 'apps', on 16 June 2022 you agreed to meet in person and did meet the following day at your home address in Footscray to see who could do 'bigger puffs'[6]- a reference uncontested, it seems, as a reference to smoking methamphetamine.
[6]It is the Crown (which appears to be uncontradicted) case that “puffs” is a reference to smoking methylamphetamine.
OFFENDING
Charge 1- rolled up charge involving three (3) separate occasions of supplying a drug of dependence to a child contrary to s71B of the Drugs Poisons and Controlled Substances Act 1981 (15 year maximum)
10On 17 June 2022, Grace caught the earliest train on the Ballarat line to Footscray.
11In her VARE she said upon her arrival at the Footscray train station you were waiting there for her and she noticed you looked different to the picture on the 'MeetMe' account where you looked like you were in your 20s, where you were actually double that age.
12You walked together to your address.
First occasion – supply a drug of dependence to child (methylamphetamine) on 17 June 2022
13Grace says of this:[7]
'A: And I went and I sat on like one - like couch that was by itself and he sat on the big one, and I guess we started puffing and seeing who could get bigger puffs of meth. And he also gave me xannies that I requested, but fake ones so they made me go a bit loopy.
Q: So can you tell me a bit more about how you were puffing the meth. Like, where did you get the meth from - - -
A: I got it from Con, like, I used Con’s pipe.
Q: Yep.
A: And – and he offers to shout me, like, I don't really ask otherwise he just sits there and gives it to me.'
[7]VARE Q/A 44-46. I note that there is no charge of supply a drug such as Xanax on the indictment (charge 1 on the indictment is only particularised as relating to the provision of methamphetamine), and so for the purposes of sentence, I do not take this part of the evidence into account against you.
14Grace took one of the tablets you supplied to her and smoked methylamphetamine for about 20 minutes. After smoking the methylamphetamine, she took the remaining tablet that you had supplied to her.
15Grace had a limited memory of the events that followed, as a result of having been supplied tablets and methylamphetamine. She told police[8]:
'A: And then I don't remember what happened next because of the Xanax but I know parts - like, obviously I remember going in the room to cuddle and that's it and then I don't remember anything else but I'm guessing we did fuck because I've got photos I have on my phone, but that's in his room and he doesn't seem to care that I have them either.'
[8] Ibid Q/A 56.
16On 17 June 2022, Grace was listed as a missing person by DFFH residential staff, and a safe custody warrant was issued.
17On 18 June 2022, she was located by police and transported to a secure welfare facility where she remained for approximately three weeks.
18Upon her release from the secure welfare facility, she checked her mobile telephone and within her Snapchat application she had a password protected titled 'My Eyes Only.'
19The complainant did not see you again until 4 August 2022.
20The reality is, after this first encounter in mid-June 2022, you were not in a position to contact her for 40 days leading up to 19 July 2022, as you were in custody awaiting determination of charges of supply drug to a child, nine times, and attempt to supply drug to a child, breach of bail and possess methamphetamine.
21You were released on 19 July 2022 on a combination sentence involving the 40 days PSD you had served, followed by an 18-month CCO with conditions tailored to guard against further offending. You breached that CCO in the most egregious and aggravating way within a fortnight in the way I have commenced outlining and will deal with further now.
Second occasion – supply drug of dependence to child (methylamphetamine) on 4 August 2022
22On 4 August 2022, at about 1.00 pm, Grace again went to your address in Footscray.
23You both went into your bedroom where you provided methylamphetamine for her to smoke.
24You left the room to participate in a 'Zoom' call while Grace smoked the methylamphetamine.
25About 15 minutes later, Grace heard you end the 'Zoom' call and went to the back door where she observed two of your friends outside.
26She asked to use the toilet but was unable to, so she returned inside the house and you followed after her.
Third occasion – supply drug of dependence to child (methylamphetamine) on 4 August 2022
27On this same day you both returned to your bedroom where you provided her with a hypodermic syringe containing methylamphetamine. Grace injected herself with the methylamphetamine provided to her by you.
28Matters then took on a darker complexion, as Grace informed the police of the matters that serve as a prelude to the first sexual offending, Charge 2:[9]
'A: Yep. And then he said to me, 'You are cooked enough now,' and then straight after that, like - like, he didn't even ask me if I just wanted to have sex with him or, like, if he could do anything to me. He just, like, tipped me back onto the bed and then he grabbed my inner thigh, my right inner thigh, and he squeezed it, and then he turned my head and kissed me, and like, I wasn't planning on this at all. I was only just coming to, like, see him for a bit. And then he slightly started undoing my button on my pants and I was kinda frozen at that time, like, I don't know what to do and then he unzipped it and just ripped my pants off…'
Charge 2 – Sexual penetration of a child (six counts rolled up) contrary to s 49B(1) of the Crimes Act
First occasion: the accused introduced his tongue into the vagina of the complainant on 4 August 2022
[9]Ibid Q/A 88.
29Grace describes this offending as:[10]
'A: … and then he took my G string off like and then he left my top on and all that, like, I didn't have my puffer jumper on, it was already off. And first thing he did was, like, lean down and give me head, like, started licking my vagina out. And he put his tongue fully in my vagina …'
Second Occasion: the accused introducing his fingers into the vagina of the complainant on 4 August 2022
[10]Ibid Q/A 88.
30After licking the victim’s vagina for about two minutes, you introduced your fingers into her vagina.
31Of this Grace said in her VARE:[11]
'A: He was half on the bed, he wasn't - and then he got fully on the bed and then, like, he started fingering me a bit and at that time he just put four fingers in and another four fingers, like, one at a time and he was going really, like, stiff, like, I wasn't gonna say anything because, like, I didn't want to get hurt obviously and then' – and then the witness has a drink. 'I don't like explaining this, and then Con - clearly he had - already had his fingers in me and then he didn't put his dick in me at all, like, or the main position we were in before, like that, hitting and that started and, like, getting a bit rough, I was - had my leg, like, up over him like that. He, like, held it there and he had his leg just like that and he was, like, reaching over and going like this and then a few minutes later, I would say about four minutes of that …'
Third occasion: the accused introduced his fist into the vagina of the complainant on 4 August 2022
[11]VARE Q/A 89.
32You then stated to the vulnerable child in your home that you wanted to 'fist fuck' her. This disturbing, painful and degrading conduct is described by Grace in this fashion:[12]
'A: … and then he turns around and says to me, 'I’ve like - I want to fist-fuck you.' And that's the first thing that made me concerned 'cause obviously I know what that means and it's never good and I knew it was gonna hurt so I just - it froze - and he kinda got my legs, like, and pulled them back so when - when he finished in the other position and he just, like, put his full fist in my vagina and just started going. I did try and grab his hands a couple of times and ask him to stop but he said, 'No, just leave them there.' And he wouldn't pull them out at all. And that's - this is all happening so fast.
Q: That's all right.
A: It feels like I'm repeating myself…and then after, like, I started pulling away, I just said we do it a few more times and then he like obviously I started, like, moaning a little bit but I didn't really moan it was more agony because I kept - I stopped - then I just let it off. And then he suddenly starts saying, 'I want you to scream, like, I want you to scream, like really aggressive and intense.' And then, like, he kept switching between, like, fingers, fours and fists, like, even though I told him to stop and every time he'd go up, he'd go deeper and deeper and deeper. And I did end up screaming and - and then after that – ‘cause I screamed for, like, a few minutes straight because, like, he just kept on going really fast, going really - like all the way up to my belly button, I would say like past the bone.'
[12]Ibid Q/A 89-90.
33You repeatedly penetrated the victim’s vagina with your fingers and fist, pushing deeper into her vagina, causing her to scream in pain.
Fourth occasion – the accused introduced his fingers into the vagina of the complainant on 4 August 2022
34Further, Grace went on to describe the next act in her VARE[13]:
'A: … And then he started rubbing my clit which I said, 'Don’t, like, it really actually hurts,' and then he turns around and says, 'No, you love it.' And then it - it started burning when he was, like, rubbing and then he would slide his two fingers back in.'
[13] Ibid Q/A 90.
35You rubbed the complainant’s clitoris and inserted your fingers into her vagina.
36You attempted to insert your fingers into her anus, however, she said, 'No, don't because I don't – like, I can't handle it.'
Fifth occasion - the accused introduced his penis into the mouth of the complainant on 4 August 2022
37You manoeuvred her so she was on top with her face in your groin area. You then directed her to suck your penis. She says:[14]
'A: He asked me to suck his dick and he's – he's so – he's wrapped his legs around my head, so I was like - like my pussy was at his face and my head was at his dick, so when he's wrapped his legs around my neck I just did it because, you know, I didn't really know what to do at this point. Obviously, I was cooked …'
[14]Ibid Q/A 90.
38You told the victim to 'Suck it but, like, soft.' Whilst she sucked your penis, you ejaculated into her mouth, causing her to almost vomit.
Sixth occasion – the accused introduced his fist into the vagina of the complainant on 4 August 2022
39You then inserted your fist into the vagina of the victim for a second time.
40Grace told police that you had 'Done the fist again, like, up my vagina…'
Further misconduct evidence
41After introducing your fist into the victim’s vagina on the second occasion, you slapped her buttocks for about 10 minutes.
42She recalled that the entire incident lasted approximately 40 minutes.[15]
[15]Ibid Q/A 94.
43You both lay on your bed for a short period of time. At about 3.00 pm you got up and got dressed and told Grace you had to be at work at four.
44You told the victim to walk around the house in her G-string underwear. You watched the cartoon program 'Sponge Bob' for about five to 10 minutes prior to leaving for work.
45Grace gathered her belongings and a short time later she left your home.
46After leaving your home at about 3:30 pm, Grace telephoned her senior case manager (SCM) and disclosed the offending.
47Her SCM arranged for Grace to be collected by the residential care staff at the train station and accompanied her to Ballarat Base Hospital for medical examination.
INVESTIGATION AND ARREST
Investigation
48On 4 August 2022 at about 4:30 pm, Sergeant Hawkes of the Westgate Proactive Police Unit was contacted by the SCM, relaying the disclosure that had been made by the victim.
49On the same day Detective Leading Senior Constable Ford and Senior Constable Eden attended the Ballarat Base Hospital. While speaking to Ford, Grace disclosed the allegations made against you.
50She provided her mobile telephone number to Ford, who took photographs of messages on it between her and you.
51Ford seized Grace’s underwear and jeans and facilitated an early evidence kit (EEK) with the child. Accordingly, swabs were taken from her mouth, breast and groin area, and a urine sample was provided by her. These items were labelled and later tested.
52The summary of prosecution opening notes that Grace advised Ford that she had been bitten on the arms. Ford observed faint red marks on each of the complainant’s arms. I deal with this as a minor contextual matter in the scheme of things, consistent with the general way in which the victim was treated, but I do not sentence you on the basis that it represents a charged act of assault, for instance.
53At 11.20 pm, on 4 August 2022, Grace provided a VARE statement to police.
Arrest
54The day after the VARE was conducted, namely 5 August 2022, at approximately 2.10 pm, Detective Senior Constable King and Detective Senior Constable Williams, attended the vicinity of your home. An hour after arrival King observed you leave the house.
55You were initially arrested and interviewed for the rape of Grace. King stated you immediately claimed 'It was consensual.'
56At about 3.50 pm, Detective Acting Sergeant Riebeling, Detective Senior Constable Goss, and DSC Starbuck attended your premises and executed a warrant. During the execution of that search warrant a number of items were seized, including:
(a) A mobile phone;
(b) A blue pen;
(c) A methylamphetamine smoke pipe;
(d) One tissue box containing two sets of scales and drug paraphernalia;
(e) A 'Realme' mobile phone; and
(f) Drug paraphernalia that was located within the loungeroom and the bedroom of the premises, including bags and hypodermic syringes.
57At the conclusion of the execution of the warrant you were transported to the Footscray police station for interview.
Record of Interview
58You were interviewed at about 6.14 pm on that day.
59During the interview you denied the allegations and stated, amongst other things, that the complainant had told you that she was 20 and showed you her licence.
60By way of explanation, you further stated:[16]
'Originally, I thought – well, up until now – well, before I thought she was 20, turning 21 this month and I was – from what – when I asked her, originally when I spoke to her, I can’t remember how long ago it was, that her age was. Specifically explained the reason that, you know – ‘cause for me, I don't want to speak to anyone that's under 18 and … yeah, she was, you know, convinced - well, she convinced me that she was 20, turning 21. She showed me - I didn't look properly, so it probably is my fault as well, but she showed me a licence. Obviously, it's a fake licence but, yeah, I didn't - didn't sort of realise at the time, yeah. I met her once and I met her yesterday. Yeah, yesterday was the second time I met her. I told her to come pick up some - I had some clothes - clothes of my sisters and some other girl that was living at my place a while ago, who I can't get hold of now. And I thought rather than put them through the donation bin, I'll see, you know, if she wants some clothes. And she wanted – she wanted her puffer thing, whatever the thing was you inhale. So I said, 'All right, I'll buy you one.' She came past and she was over for about an hour and a half, just under two hours yesterday, but did nothing, there was no sex involved, there was no penetrating, whatever you call it. So yeah, I'm just in shock, I don't know what to do, I don't know what to say. And the fact that - that age now where you said 16, just kills me.'
[16]Transcript of Record of Interview, Q/A 21 (‘ROI’).
61Not a word of that foregoing answer was true.
62During the record of interview you were asked the following questions and gave the following answers in relation to the photographs recovered from the victim's mobile telephone:[17]
[17] Ibid Q/A 187-195.
'Q: - - - things that we’ve actually – we’ve obtained screenshots of photos from [Grace’s] phone - - -
A: Yeah.
Q: - - - where it appears that she’s taken photos of herself in your address - - -
A: Okay, yeah.
Q: - - - smoking methylamphetamine.
A: Okay.
Q: Explain that.
A: I dunno. Was it – was it on her phone?
Q: Yeah.
A: So, I dunno. I dunno – I dunno what to say, like, I was - I can't recall it. when she took it – when - maybe when - when I wasn't there, who knows? I dunno.
Q: Earlier you said that when [Grace] was at your house nobody else was there. Is that correct?
A: Pretty sure, yeah. I can't - I can't recall.
Q: We've also obtained photos from [Grace’s] phone of a sexual nature, which appear to be taken in your house - - -
A: M'mm.
Q: - - - with another person present. Explain that.
A: With another person present?
Q: M'mm.
A: I can't recall it, I don't know what you're talking about. I dunno. Another person? I dunno, I’m – I’m - I don't even know what to think – I dunno. Sorry, I dunno what to say, I dunno.'
ANALYSIS OF EVIDENCE
Victim’s phone
63Grace provided her mobile phone to police, its contents were downloaded and a review was conducted by Detective Senior Constable Goss.
64Located within her telephone were chat conversations between her and you.
65Also located was a password encrypted section of a Snapchat application titled 'My eyes only,' which contained images taken at 11:09 am on 17 June, the date of Charge 1.[18]
[18]Which I stress does not involve allegations of sexual offending at that time.
66Two images located depict her wearing only underwear and sitting on the lap of a person who has both their hands placed on her naked breasts. Those images are taken within a room of your house.
67Also located on her telephone were a number of short videos depicting Grace smoking methamphetamine in various rooms of your home.
Your phone evidence
68During the search warrant executed on your address, two phones were seized. They were downloaded also by Detective Senior Constable Goss.
69Located within your telephones were chat conversations between yourself and Grace.
70Also located within the phones were a significant number of messages using the application 'MeetMe' where you had made contact with various persons offering 'puff' sessions.
71Within the mobile telephone was a password encrypted section of the Snapchat app, titled 'My Eyes Only,' which contained a number of short videos taken on your telephone from February through June 2022 and August 2022.
DNA Analysis
72DNA was conducted upon a blue pen seized from your premises under warrant, upon a sample taken from the early evidence kit (EEK) completed by Grace, and upon a sample from the underwear worn by her. At the conclusion of the interview you provided a sample of your DNA.
73Upon analysis the following results were found:
(a) a DNA profile matching you was found on the early evidence kit sample provided by Grace.
(b) a mixed DNA profile matching you with the victim as a contributor was found on the blue pen located at your home during the warrant.
(c) the underwear worn by Grace and provided to Detective Leading Senior Constable Ford on 4 August, found the presence of a Y chromosome material found only in males. You could not be excluded as being a contributor to it.
74The analysis of the evidence suggests that this was a strong Crown case.
Case history
75In light of the above, the matter proceeded relatively quickly. Having been charged on 5 August 2022 an offer was made to resolve the matter on 16 February 2022, and that offer was finally accepted by the Crown on 7 June 2023. The matter first commenced before me on 13 September 2023, with a further plea occurring on 21 December 2023.[19]
[19]Where I ordered a Forensicare report, which became Exhibit 4- Forensicare Report of Dr Kate McGregor dated 20 October 2023.
76You have been sentenced today, being 29 January 2024, some 18 months after you offended. You have been in custody for the entirety of these proceedings.
Victim Impact
77At a time immediately following the offending, Grace described traumatic flashbacks,[20] and felt like she was 'overflowing with this shit'. [21] She did not make a victim impact statement herself.
[20]VARE Q/A 192.
[21]Ibid Q/A 224.
78Grace’s case worker, who I will refer to as 'Michelle'[22] by way of a pseudonym, from the Department of Families Fairness and Housing, who is a child protection sexual exploitation practice leader, made a victim impact statement on Grace’s behalf in December of last year.[23] She had worked with Grace since early 2022 and describes the catastrophic emotional impact the offending had on her.
[22]A pseudonym.
[23]As she is entitled do under Section 8K of the Sentencing Act1991 (Vic).
79In the immediate aftermath, Grace was acutely distressed, disturbed and hypervigilant. Michelle suspects that Grace will spend a large portion of her adolescence, and perhaps adulthood, understanding the impacts of her abuse and exploitation. Grace was already a vulnerable and damaged child and your abuse of her made it harder for those tasked to care for her, in lieu of her family, all the harder. She had gone missing from care more often since the offending and engaged in episodes of self-harm or risk taking. Her level of emotional and psychological wellbeing was so compromised she had to be located interstate in early 2023. She has not been able to re-integrate into the education system and has not been able to sustain employment.
80I have not taken into account the specific physical impacts of the crime referred to in the victim impact statement, given that Michelle’s comments are not supported by, or at times are actually contrary to, the depositional material. The parties agree I should approach the victim impact statement in this fashion.
81I do want to highlight Michelle’s observations where she says 'I am proud to have witnessed the strength and resilience of [Grace] during this period despite the significant impact this crime has had, and continues to have, on her. She demonstrates bravery and courage every single day.'
82Those are the consequences of your grave and grotesque offending Mr Arvanitis. The effects on a child have been rightly described as catastrophic. They are both enduring and serious. These profound effects on your child victim weigh heavily in the sentencing calculus.
MATTERS PERSONAL TO YOU
83One can plot a course from a child to a dysfunctional adult with substance abuse issues as well as interpersonal ones in reference to the history I am about to summarise.
Relationships and family
84You were born in February 1979 to loving parents. You are now 44. Your parents are aware of the offending and they remain very supportive of you. You have an older sister who is also very close to you.
85You recall your childhood as being supportive and positive but for a number of reasons you have had difficulty establishing any real independence from your parents.
Education and employment
86You attended St Mary’s Catholic primary school in Williamstown and completed high school at St Paul’s College in Altona North. You were bullied throughout high school after you began to lose your hair because of alopecia, and later, during early adolescence, grew breasts. You claim to have other psychical anomalies regarding your genitalia.
87You describe the formative years of schooling as being marred by bullying, causing significant issues with regards to your self-esteem.
88You noticed changes in your body that you perceived as abnormal, and by the time you finished school, you suffered from depression and anxiety and no small sense of isolation and self-loathing.
89After finishing Year 12 you completed two years of an accounting degree before dropping out. You experienced extreme issues with self-esteem and social anxiety that resulted in you dropping out of the course.
90After you commenced a relationship with a former long-term partner, you began to feel more confident in yourself, and with assistance from your former partner you returned to your studies.
91You completed a diploma and advanced diploma in accounting at Box Hill Tafe.
92You worked part-time during your study in a pizza shop and as a carpet cleaner. Between 2005 and 2016 you worked as a taxi driver. Between 2018 and 2020 you worked in a pizza shop. You have not worked since 2020.
Drug and Alcohol Use
93You had engaged in casual alcohol use from age 18 but stopped between ages 21 and 26 whilst in your long-term relationship.
94From the age of 26 you engaged in social cocaine use.
95Then from the age 32 you engaged in methylamphetamine use after you lost your taxi licence.
96In 2020, after you had to have two toes amputated due to not properly managing your diabetes, you commenced using Ice in earnest.
97At that time you report accelerating usage to the point where you would spend all your money on ice, using up to a gram a day. It apparently made you feel 'normal', and what is more, you felt the provision of drugs to others would encourage them to socialise with you.[24]
[24]Exhibit 4- Forensicare Report of Dr Kate McGregor dated 20 October 2023 at [16].
Forensic history
98You have prior convictions in 2015 for criminal damage and resist emergency worker, and in 2017, driving matters for which you were either placed on a bond or were fined for. They are irrelevant for these purposes and I have had no regard to them.
99By 19 July 2022, you were sentenced in relation to charges of supplying drugs of dependence to a child (x9) and one of attempting same. Upon release you were to commence on a community corrections order which included alcohol and drug treatment. The offending, I note, involved giving prescription drugs to a female child who was 17.
100Due to almost immediately re-offending and your subsequent arrest, you did not engage in any treatment.
101That offending exposes a familiar theme in the provision of drugs to others, though obviously without any sexual component as you did with Grace.
102The offending with Grace obviously constitutes a serious escalation in criminal behaviour.
103You, yourself, realise the negative impacts drugs have had on you. I am told you are abstinent in prison and wish to remain that way.
History including mental health
104Historically, you have managed your health conditions by ignoring them.
105You have diabetes, hypertension, asthma, hay fever and indigestion problems, and have been prescribed medications since being remanded.
106To manage your diabetes you are on a variety of medications. You are prescribed other medication to assist with blood pressure and cholesterol.
107You were prescribed an antidepressant, Cymbalta, but ceased using the medication some time ago.
Mr MacKinnon’s opinion
108Forensic psychologist, Mr Ian MacKinnon[25] provided a report to the court and had diagnosed you with mixed depressive and anxiety disorder with depression operating as the dominant symptom.
[25]Exhibit 2- Psychological Report of Ian MacKinnon dated 2 September 2023 – Forensic psychologist who provided a very helpful report.
109He opines that at the time of the offending, you were labouring with a diagnosis of mixed depressive and anxiety disorder and substance abuse disorder.
110He opined the following in his very useful report at Paragraphs 70 to 79 inclusive:
(a) Your functional intelligence and general cognitive function fell well within the normal adult range and you were appropriately orientated to time, place, person and purpose.
(b) At the time of the assessment you were suffering with mixed depressive and anxiety disorder, otherwise known as MDAD, with depression at that time currently the dominant symptom.
(c) You had largely overcome a pre-existing condition of substance abuse disorder (SAD) while you were in custody, which had entailed habitual use of methamphetamine.
(d) The likely identifiable antecedents to your MDAD included psychosexual, social, relationship, body-image, self-esteem and identity problems, arising from hormonal and/or chromosomal variations from the norm, that you struggle with.
(e) In combination, these issues appear to have shaped much of your personal development and life experience in profound ways affecting your romantic and sexual life, social activities and networks, vocational pathway and so on.
(f) You had apparently turned to illicit substances, cocaine at first and then ice, after your one and only romantic relationship ended as a consequence. The decision to involve yourself in drugs appears to be one of the bigger regrets of your life and you have struggled to find motivation to apply yourself in a productive and competent manner, to a significant degree, in any facet of your life.
(g) You have remained highly dependent on your parents for emotional, financial and accommodation needs throughout your adulthood. This arrangement was finally disrupted when you moved into your grandmother’s Footscray home two or three years earlier. Instead of developing healthy independence and self-sufficiency, you fell into an even poorer state of mental health, neglected several serious physical health issues, were unemployed, lonely, and spent inordinate amounts of time on the internet and social media and personal contact sites while also using ice habitually. Those mounting issues were not helped by the Covid and the social and financial stresses wrought a degree of havoc on you.
(h) Mr MacKinnon's opinion is that you may labour with a psychosexual pathology that does not 'neatly' fit into a formal diagnostic category, but nevertheless, encompasses hebephilic impulses, that is to say an attraction for females in their post-pubertal/early adolescence period from around 11 to 14 years of age.
(i) In his opinion, 'If Mr Arvanitis', he says[26],
'Does indeed labour with such a pathology, it might not be entirely entrenched. and in that context he may be able to benefit from therapeutic intervention. Nevertheless, the same personal characteristics and challenges that may underpin Mr Arvanitis' hebephilic impulses may also lead him vulnerable to experiencing paedophilic impulses.'
(j) He concludes[27]:
'Given Mr Arvanitis does not have any prior history of sexual offences, I am unable to propose, with any certainty, as to whether or not he suffers with an entrenched psychosexual pathology.'
[26] Exhibit 2- Psychological Report of Ian MacKinnon dated 2 September 2023 at [77].
[27] Ibid at [78].
111To his credit, Mr MacKinnon resisted speculation. At Paragraph 85 of his report he said your MDAD and SAD are likely to have made significant contributions to your offending by degrading your ability to apply good judgement and sound reasoning, reducing your capacity for empathy and concern for others welfare and rights, distorting your perception and cognition, fuelling anxiety, disinhibiting you and degrading your ability to apply consequential thinking.
112Beyond that, though, he would not be drawn on whether or not you have a psychosexual pathology that may or may not involve hebephilic impulses and given his view of the offending he suggested that you may have been labouring duration or entrenchment. He noted whatever mindset that you might have had at the time, it was certainly worsened by the use of ice and consequent disinhibition.
113He was unable to confidently give an opinion about whether or not you laboured with entrenched antisocial and/or criminal traits and the likelihood that you may reoffend in a similar manner.
114This frankness in an expert is refreshing and nothing short of what a court expects from its experts.
115On the important aspect of the risk of further offending and the true motivations for this offending, I determined to have a Forensicare report prepared by Dr McGregor to delve deeper into these issues, and I turn to her opinion now.
Dr Kate McGregor’s view
116Dr McGregor in her report of 20 October 2023[28] provides two important insights.
[28]Exhibit 4- Forensicare Report of Dr Kate McGregor dated 20 October 2023.
117The first is as follows and relates to the motivation, causes and risk of repetition of this type of offending at Paragraph 44:
'Mr Arvanitis’ sexual offending occurred against a background of poor mental health (specifically depressed mood and anxiety), social isolation, lack of structure and poor physical health. It appears to have been motivated by a desire for intimacy. His poor sense of self and anxiety about rejection meant he felt unable to connect with women or establish intimate relationships. He has therefore sought intimacy with females online offering access to illicit substances as a means for encouraging them to spend time with him. He denied being sexually motivated in these actions, citing his low libido, but this appears difficult to reconcile with the offending. Rather, available details suggest that his actions were at least partially sexually motivated. This may reflect disinhibiting function of methamphetamine abuse along with a perception of sexual activity as a means for achieving intimacy, self-worth, and alleviating boredom. Mr Arvanitis denied sexual deviance, that is paedophilia or hebephilia, and available evidence does not support a sexual deviance diagnosis. His actions could be understood as related more to targeting a vulnerable individual, that is to say an adolescent girl in welfare, whom he perceives as less threatening rather than sexual preferences for pubescent females. In this case, his offending appears situational.'
118The second insight Dr McGregor provides is at Paragraph 45 with respect to your diagnosis of MDAD:
'It is my opinion', she says, 'that at the time of the offending Mr Arvanitis met the criteria for a DSM-5 diagnosis of major depressive disorder, mild, such that he had a persistent depressed mood and tearfulness, loss of interest and pleasure, sleep and appetite disturbance, fatigue, and feelings of worthlessness. It is noted that there was an interaction between these symptoms and his physical health concerns and substance abuse. In addition, he met the criteria for a DSM-5 diagnosis of stimulant use disorder reflecting his continued use of methylamphetamines leading to clinically significant impairment and distress. At the present time he meets the criteria for a diagnosis of stimulant use disorder in early remission in a controlled setting, reflecting his abstinence since being incarcerated. His depressive symptoms would have contributed to poor decision-making, poor self-care, feelings of worthlessness and increased social withdrawal and anxiety in the lead up to the offence. Certainly, these factors were part of the context in which the offending behaviour occurred. It is also likely that his depressive symptoms contributed to poor judgment and consequential thinking, which contributed to the offending behaviour, but it is difficult to disentangle these effects from the effects of his methamphetamine use, which would have also impacted his judgement and consequential thinking as well as impulsivity. In this way his substance abuse played a direct disinhibiting role in the offending.'
119The foregoing provides useful insights, but I add, not excuses, into the causes for this offending and assists the court very much in assessing the risks of its repetition.
Custody
120You have been active in custody and have been visited regularly by your family. Their continued support is encouraging.
121Despite programmes being limited whilst you are in protection prison, at the time of the plea you completed a number of courses, including:
(a) The Atlas 'Healthy Relationships' program;
(b) The Atlas 'Recalibration' program;
(c) 'Ice and Me' program;
(d) 'Alcohol and Me' program;
(e) 'Peace and Education' Modules 1,2,3,4 and 5.
122I have further been informed that you have been working as a baker and have been involved in peer support of other prisoners.
MATTERS OF SENTENCING PRINCIPLE
Offending
123I have outlined the broader context of the offending.
124I was assisted by the provision of the Court of Appeal case of Sim[29] by your counsel. That case dealt with broadly similar behaviour of an older man providing drugs and violating a younger female victim. It was not relied on so much as a true comparative case illustrative of a particular sentencing range, and nor was I asked to consider that case in a de facto parity sense where I was being asked to assess similarities and differences in Sim before passing sentence upon you, but rather it was indicative of the type of sentences typically imposed in cases of this kind, complete with useful sentencing analysis dealing with the interplay between the provision of drugs to a child and sexual offending against that same child. Some of what I am about to say is conveniently covered and dealt with in Sim, or at least informed by it.
[29]Sims v The Queen [2022] VSCA 114 (‘Sim’).
Sexual offending against children generally
125In assessing the general gravity of the offending, I have regard for the fact that sexual offending against children is now well understood to have the capacity to cause enormous harm to those subjected to it. The legislative scheme means that a child under 16 simply cannot consent to sexual penetration. This prohibition has the dual purpose of protecting the child from harm that comes from premature sexual activity, and deterring adults who would contemplate having sex with someone under the age of 16. This prohibition is founded on a presumption that premature sexual activity will cause long-term physical and psychological harm and is unaffected by the presence of apparent consent.
126As stated in Clarkson:[30]
'The absolute prohibition on sexual activity with a child is founded on a presumption of harm.… and that a child’s consent, of itself, can never be a mitigating factor.'
[30]Clarkson v The Queen [2011] VSCA 157 (‘Clarkson’) at [3]-[4].
127So while consent can never itself be a mitigating factor in offending like this, I pause to add here there is not even the façade or illusion of consent, nor is there any real consideration, it seems, of the wishes of the victim in this case. I will not repeat the harrowing account given by the complainant of the depraved, brutal sexual acts she endured earlier in order to illustrate this point. Proven lack of consent will significantly increase the seriousness of such offending, and that, indeed, is the case here.[31]
[31]Adamson v The Queen[2015] VSCA 194 at [29].
Supply of a drug to a child
128Supply a drug of dependence to a child is an offence created by s71B of the Drugs Poisons and Controlled Substances Act 1981 (Vic). It has a maximum penalty of 20 years, that is to say its maximum penalty is higher than that of sexual penetration of a child under 16. That penalty is testament to just how serious Parliament views offending of this kind.
129It differs from s46 of the Crimes Act 1958 (Vic) counterpart which is administration of an intoxicating substance for a sexual purpose in important regards. The Crimes Act variant carries a maximum of 10 years and requires proof that the drug was administered in order to secure consent.[32]
[32]Section 46 of the Crimes Act 1958 (Vic)- or render the complainant incapable of consent.
130The Crown disavowed that you provided drugs to Grace for the purposes of procuring or securing her consent, and I do not sentence you in a way contrary to that concession.
131Consideration for sentencing matters of this type are echoed in those matters that concern sexual offences against children. Children are vulnerable and do not always make the best decisions for themselves as they lack the life experience and maturity to do so.
132The gravity of an offence of supplying a drug of dependence to a child for the purpose that that child use it, is to be measured against, in my view, the following criteria:
(a) The type of drug provided and its known properties and dangers.
(b) The quantity provided.
(c) The frequency provided.
(d) The age of the recipient.
(e) Their familiarity with the effects of the substance.
(f) The accused’s knowledge of the effects of the substance, and
(g) The accused’s intention in providing the substance.
133Here, you provided a child of 14 with methylamphetamine in June 2022 and twice on the same date in August 2022. It did not appear to me that any limits were placed on her use by you. She smoked and later injected it with a needle provided by you for that purpose.
134Ice is a notoriously dangerous and addictive substance, to provide it to any child is an inherently dangerous thing to do. To say that it is the cause of much misery, and indeed criminality in our community, is to severely understate its perniciousness.
135You must have known the effect of ice, given your own use. Moreover, you well knew the criminality of your conduct, having only just been released from custody after the first part of your offending against Grace, but before the second, for no less than nine charges of supplying a drug of dependence to a child as well as attempting to do the same. You immediately squandered the opportunity given to you by way of a CCO, a factor that I consider aggravates your conduct here regarding Grace.
136The effect of ice on your victim was entirely expected. She described it vividly. Once, in her words, she was sufficiently 'cooked', you initiated sex. This accentuates your culpability of the sexual penetration charge – knowingly penetrating her once she was substance affected.
137Care needs to be taken that the sentence to be imposed for the sexual penetration offence does not contain any portion that was referrable to the offence relating to the supply of a drug to the child.
138Where an offender is sentenced for two offences, where the same fact is an element of one, and is also a circumstance of aggravation of the other, a sentencing judge must take into account the sentence imposed on the first offence and give credit against the second offence, to avoid doubly punishing the offender twice for the same act.[33]
[33]Section 51 of the Interpretation of Legislation Act1984 (Vic); Pearce v The Queen (1998) 194 CLR 610.
139I take into account that your child victim was supplied with methamphetamine prior to the sexual offending, as an aggravating feature of the offending of a sexual nature. There is no overlap between this act and any of the elements of sexual penetration of a child under 16.
140Your moral culpability is heightened given that you preyed upon a vulnerable victim compromised by the effect of a drug. Her vulnerability arises because she was, of course, a child, and what is more, substance affected – factors which you were well cognisant of.
141It is not apparent to me whether or not you were aware of her additional layer of vulnerability such that she was in the care of the State and so I do not sentence you on the basis that you were aware of this additional feature of Grace’s unfortunate life circumstance.
142I will moderate the degree of cumulation on the sentence imposed on Charge 1 on Charge 2, to avoid double punishment.
Gravity and severity of this offending
143These are inherently serious offences, and you have engaged in serious episodes of these serious offences with extremely adverse consequences on the victim. The recitation of the details of your sexual offending is nothing short of harrowing.
144Your counsel, quite rightly, pointed to the following matters which are relevant to the court’s consideration in assessing the objective seriousness of the sexual offending:
(a) the offending occurs over a single period lasting approximately 40 minutes;
(b) at the time of her medical examination she presented with no signs of perineal trauma in the pelvic area, nor other injuries elsewhere;
(c) the victim was 14 and you were 42; and
(d) the victim had used methamphetamine supplied to her by you.
145I emphasise that although the sexual offending occurred over a single episode, it lasted close to three-quarters of an hour. The sexual acts and your utterances were at times brutal, degrading and bordering at times on malevolent. It involved multiple, repeated acts of penetration by different means against a very vulnerable, drug-affected child, whose signs of obvious and understandable distress were ignored.
146Though this offending does not involve penile penetration of the victim’s vagina, carrying with it the risk of unwanted pregnancy or sexually transmitted disease, there is of course no hierarchy of penetration offences, there is no hierarchy of penetration making one offence inherently more or less severe than another. For example; although digital rape does not involve some of the risks of penile rape, that does not mean a particular instance of it is less serious. An assessment of the gravity of an offence, as always, depends on the facts of the case.[34]
[34]R v Lomax [1981] 1 VR, 558-59; Director of Public Prosecutions v Tewksbury (a pseudonym) [2018] VSCA 38 at [67]; Director of Public Prosecutions v Elfata [2019] VSCA 63 at [36]; Director of Public Prosecutions v MacArthur [2019] VSCA 71 at [81]; See also R v Brown[2002] VSCA 207 5 VR 463 at [57]; Director of Public Prosecutions v Coffey [1999] VSCA 146 at [29]; Heathcote (a pseudonym) v The Queen [2014] VSCA 37 at [48] ; Wakimv The Queen [2016] VSCA 301 at [52]; Director of Public Prosecutions v Cooper [2018] VSCA 21 at [71].
Mitigating factors
Plea of guilty
147The plea of guilty, particularly at an early stage in the proceedings, and I add in the face, in my view, of a strong Crown case, is still a powerful factor in the mitigation of sentence.
148The acceptance of responsibility and utilitarian benefit of the courts in the matter having resolved at an early stage, has relieved the victim of any trauma of being cross-examined and the community has been saved the expense of a trial. This has real value in a case such as this.[35]
[35]Reid ( a pseudonym) v The Queen [2014] VSCA 145 at [111] – [114].
149Your counsel has agreed that a conviction for this offending was not necessarily inevitable. I am not convinced that that is an accurate assessment given the assessment I made of the Crown case earlier, but nonetheless, this was a plea entered in mid-2023 and it has a particularly substantial utilitarian value during the pandemic.[36] The plea was entered in circumstances of a backlog of cases, which increases the utilitarian value of a resolution.
[36]Worboyes v The Queen [2021] VSCA 169.
Remorse
150Remorse is a vexed issue here. Your initial denials to police suggest that you were prepared to lie rather than admit your conduct and display contrition for it.
151Mr MacKinnon assessed you on 23 August 2023 and provided the court with a helpful report when you told him:[37]
'I don’t even know why I did it [the offences]. I keep thinking I’ve ruined her life, it’s not right. I wasn’t thinking at the time… I wish I could take it back. I have to make sure I become a better person. I do have some friends, and I have family support. I always like having people around me. Moving into my grandma’s house was a mistake as well, that’s where the offences occurred. None of this would have happened if drugs weren’t involved…It’s been a blessing in disguise, coming here [prison]. I’ve stopped taking drugs, I’m taking my medicine. I’m really feeling better. My family still visit me, give me another chance. I’ll come out a better man…I’ve accepted that what I did was wrong. I still can’t fathom how much I’ve dented this girl’s life.'
[37]Exhibit 2- Psychological Report of Ian MacKinnon dated 2 September 2023 at [81]- one where the author understood the limits of his expertise and posed sound questions that founded the requirement of a second report from Forensicare.
152This statement was rather undercut by some of the denials you made later to Dr McGregor of key aspects of the offending.[38] That spoke of minimisation of the offending, dubious apparent memory lapses and a lack of true insight.
[38]Exhibit 4- Forensicare Report of Dr Kate McGregor dated 20 October 2023 at [20].
153Nonetheless, the prosecutor very fairly conceded that you have had time to grapple with your offending over time, and in light of the totality of the above, you exhibit what can be best described as an 'appreciable level' of remorse, which along with insight may well be a work in progress.
Verdins [39]
[39]R v Verdins (2007) 16 VR 269 (‘Verdins’).
154In the submission directed to the application of Verdins, I was taken to the following: firstly, Mr MacKinnon, where he notes:
(a) at the time of the assessment you appeared to be suffering from MDAD;
(b) since being remanded you appear to have largely overcome a pre-existing substance abuse disorder;
155Mr MacKinnon opined[40]:
'The likely identifiable antecedents to the MDAD, including psychosexual, social, relationship, body image, self-esteem and identity problems arising from hormonal and/or chromosomal variations from the norm' that you apparently struggle with.'
[40] Exhibit 2- Psychological Report of Ian MacKinnon dated 2 September 2023 at [72].
156In combination these issues appear to have shaped much of your personal development and your life experiences. I am essentially repeating the quote that I mentioned earlier.
157He concludes in his opinion your MDAD and SAD diagnosis are likely to have made significant contributions to your offending by degrading your ability to apply good judgment and sound reasoning, reducing your capacity for empathy and the concern for others' welfare and rights, distorting perception and cognition, fuelling anxiety, disinhibiting you and degrading your ability to apply consequential thinking.[41]
[41] Ibid at [85].
158I have already dealt with the relevant similar portion of Dr McGregor's report above.[42]
[42] Exhibit 4- Forensicare Report of Dr Kate McGregor dated 20 October 2023 at [45].
159It is submitted that the principles in Verdins are enlivened (once one looks at both reports together) and have some application in the present case. It is accepted that in the context of offending, application of the principles are a matter of degree.[43]
[43]See Exhibit 1 - Outline of Plea Submissions dated 11 September 2023 at [10]-[11].
160It is submitted that your compromised judgment and lack of consequential thinking was a contributing factor to the offending, sufficient to enliven Limbs 1, 3 and 4, as outlined in the case of Verdins.
161The Crown agreed that this was so but endorsed it with the caveat I am about to come to.
162Mr Blake well recognised that drug use played a part in the offending, and it is submitted that any weight to be attributed to your mental health difficulties at the time as contributing to the offending behaviour, is a question of degree.
163I am inclined to moderate your culpability in accordance with the above and sensibly moderate the weight to be given to specific and general deterrence. Your sentence will reflect this moderation.
Standard sentence regime
General principles
164The standard sentence in this case (six years for the sexual penetration offence) is a numerical guidepost for courts when sentencing for specific offences. It is a guidepost, not unlike the maximum penalty.
165The period specified as the standard sentence is 'The sentence for an offence that, being taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness'.[44]
[44]Section 5A(3) of the Sentencing Act 1991 (Vic).
166The court must give reasons for imposing the sentence, any non-parole period fixed under the Act that is shorter than that specified in 11A(4), and state how the sentence imposed relates to the standard sentence.[45] This requires it to identify the facts, matters and circumstances bearing upon its judgment to the appropriate sentence.
[45]Section 5B(5) of the Sentencing Act 1991 (Vic).
167The principles bearing on the application of the standard sentencing regime were authoritatively considered in Brown[46] and there at [4] the Court of Appeal summarised the principles as follows:
'For the most part the provisions are clear and the approach required is not in dispute. The key new requirement is a judge when sentencing for a 'standard offence' must 'take the standard sentence into account as one of the factors relevant to sentencing'. This requirement:
(a)is to be treated as a 'legislative guidepost', having the same function as the maximum penalty;
(b)does not affect the established 'instinctive synthesis' approach to sentencing;
(c)does not require or permit 'two-stage sentencing'; and
(d)does not otherwise affect the matters which the court may, or must, take into account in respect of sentencing'.'
[46]Brown v The Queen [2019] 59 VR 462 (‘Brown’).
168Further, at p479, the court said – this is at Paragraphs 55 and 57:
'Judges sentencing for a standard sentence offence should continue to assess the seriousness in the conventional way, taking into account both objective gravity and moral culpability. The obligations imposed by s5B(2)(a) (to take the standard sentence into account) and by 5(2)(ab) (to have regard to the standard sentence) are indistinguishable from the obligation imposed by 5(2)(a) to have regard to the maximum sentence. They are all 'legislative guideposts'.'
'Just as judges have always had in mind a notion of 'the worst possible case', so they must now have in mind a notion that an offence 'in the middle of the range of seriousness'. At the same time, the utility of such a comparison is lessened in the case of the standard sentence. There are two reasons for this. The first is the narrowness of the definition of 'objective factors' which, as McCallum J pointed out in McLaren, is 'ignorant of' a range of matters which the judge will need to take into account when assessing the nature and gravity of the subject offending. The second is the inevitable imprecision of the notion of a hypothesised mid-range offence.'
169I emphasise that the standard sentence is one of many factors I am obliged to consider in s5(2) of the Act, many of which pull in different directions. It does not represent a starting point for a sentence from which I add or subtract depending on various factors in aggravation or mitigation as the case may be.
170As I said, I am not required to (nor will I) classify the subject offending on a scale of seriousness. My interpretation of the standard sentence regime is that I am to fully identify the facts, matters and circumstances which bear upon the judgment I have reached as to an appropriate sentence, and I have endeavoured to do so in these reasons.
Rolled-up counts
171Where a sentencing court is required to apply the principles of standard sentencing to a rolled-up charge, a court should approach the task in a manner that conceptually is similar to how it would approach taking into account the maximum penalty for an offence with respect to the rolled-up charge.
172Rolled-up charges are different, of course, from representative ones because they are a collection of identifiable charges bundled into a single one. Rolled-up charges require the offender’s agreement and are only for the purposes of a guilty plea, they simplify the court’s sentencing task and work to the benefit of the offender by allowing multiple instances of similar offending to be dealt with as a single charge rather than through numerous separate charges. That is obviously the case here and it confirms the co-operative approach the accused has taken in resolution of the matter.
173When sentencing on a rolled-up charge, though, the court must consider all of the circumstances of the offence and the offender, including if the offending was carried out over an extended period, victimised multiple persons, and/or the totality of harm described in the charge.
174While the court may consider all relevant circumstances of a rolled-up charge, the pleading must still be treated as presenting a single formal charge. The maximum penalty is still therefore limited to the maximum penalty available for a single charge.[47]
[47]R v Beary [2004] VSCA 229 at [14].
175At risk of repetition, the standard sentence should be treated as a guidepost (in respect of objective factors only) and nothing more. That being said, the 'lessened utility' of the standard sentencing guidepost, as opposed to the maximum penalty, as explained at Paragraph 57 of Brown (quoted above) also needs to be kept in mind.
176The notion of assessing the present offending against a hypothesised offence in the middle range of seriousness is also further complicated by the relevant charge being a rolled-up one.
177The sentence I impose will be higher than the standard sentence for the offence of sexual penetration of a child under 16. Having identified and considered the relevant factors in assessing the sentence on Charge 2, including my assessment that the offending is indeed serious, I regard the imposition of a sentence above the standard to be appropriate.
Totality
178I am mindful of the significance in this case of the applications of the principle which requires me, when sentencing you for multiple offences, to ensure that the aggregate term I impose is just and appropriate of the measure of the total criminality involved.
179There must be appropriate relativity between the totality of all the criminality and the totality of the effective sentence I impose. This is true when I consider the interaction between the charges.
180I have dealt elsewhere with double punishment in these reasons.
181The Crown conceded that some concurrency is necessary given both charges involve the same victim and between the same date ranges as Charge 1, as they do Charge 2.[48]
[48]I note that the serious offender provisions in the Sentencing Act 1991 (Vic) are not enlivened.
182I have determined an appropriate length of imprisonment for each charge, taking the applicable sentencing considerations into account and designated the highest term as the base sentence, and then I have determined the extent to which there should be any cumulation regarding each count and finally stood back and considered, in light of totality. what an appropriate sentence ought to be.
183It is submitted that totality looms quite large in the sentencing synthesis; as outlined in the case of Mill.[49] The offending occurs in a single incident, as I said, alongside the offence of supplying a drug of dependence (albeit that charge spans two separate occasions).
[49]Mill v The Queen [1988] HCA 70 (‘Mill’).
184It is conceded that there must be a degree of cumulation but there also needs to be serious consideration given to a substantial amount of concurrency in circumstances where for cumulation, or a high degree of it, would result in a crushing sentence.
General and specific deterrence
185It is conceded general and specific deterrence are highly relevant considerations in the context of this offending. Members of the community who seek to exploit children for their own gratification must be deterred and it is all the court can do to impose sentences of such magnitude that it serves this sentencing objective.
186Your very relevant prior conviction, and the spectacular breach of the CCO imposed as part of a sentence for it, means weight must be given to specific deterrence.
187It is submitted, though, that the principles of specific and general deterrence must be moderated in light of the Verdins factor or be accepted that such a moderation is a matter of degree. I repeat, your sentence will be moderated appropriately.
Prospects for reform
188It is submitted that the following are relevant to your prospects:
(a) No prior sexual offending history;
(b) Strong familial support;
(c) Employment history;
(d) Remorse, as expressed in your assessment by Mr MacKinnon;
(e) An early plea of guilty; and
(f) The courses and treatment completed in custody.
189Dr. McGregor provided very useful guidance on the assessment of risk – that goes in hand-in-hand, of course, with your prospects of reform. Mr Blake submitted the following matters are relevant and substantial in the assessment of your prospects in light of her report:
(a) Dr. McGregor assesses you on the Static-99 test as having a low to moderate risk of recidivism;
(b) In utilising the risk for sexual violence protocol, she assesses you in the moderate level of case prioritisation with respect to risk of sexual offending recidivism;
(c) There has been a history from you of extreme minimisation and denial of sexual violence behaviour but you have shown improvements in that area over the last 12 months;
(d) Dr. McGregor opines that indicators of an increased risk would include the resumption of methamphetamine use, social withdrawal and communication with adolescents over social media applications; and
(e) With respect to drug use, you have been engaging with a 30-hour drug treatment program whilst in custody and are being considered for an alcohol and drug peer worker position, demonstrative of your positive engagement and work with the program.
190Dr. McGregor makes a recommendation with regard to the offence-specific treatment for sexual offending and programs and treatment for substance abuse to ameliorate any risk of recidivist behaviour.
191I have concluded under the right circumstances which involve treatment within the prison system and later (of the intensive, targeted kind recommended by Dr McGregor), outside of it upon release, you enjoy good prospects for reform. Ms McMaster put it articulately - you have 'tangible' prospects.
192I sentence you on the basis that such reform, if possible, is a strong protective factor available to our community. I have not lost sight of this important sentencing consideration.
Imposition of non-parole period
193Section 11A(4)(c) of the Sentencing Act relevantly provides as follows, where one is sentencing an offender on an indictment that contains at least one standard sentence offence, with my emphasis added:
'(4) Unless the court considers that it is in the interests of justice not to do so, the court must fix a non-parole period of at least—
…
(c) Sixty per cent of the relevant term if the term is one of less than 20 years.'
194The phrase 'interests of justice' is not defined by the Act, nor does it appear to be a threshold of the kind that exceptional circumstances is, for instance.
195Counsel were invited to make further submissions on the topic but declined to do so.
196I have had regard to a case of Director of Public Prosecutions v Pan[50] where the Court of Appeal considered the relevant provision of the Sentencing Act in the context of a Crown appeal where the judge sentenced the accused to a non-parole period that was 66.7 per cent of the head sentence, not the 70 per cent which the Act contemplates for murder. In that case the judge was moved to impose a lower non-parole period not least of all because of the accused’s youth, plea and the sheer length of the head sentence.
[50][2022] VSCA 98.
197There was a reference in that case to Power[51] and that is worthy of repetition:
'In assessing whether the non-parole period is manifestly inadequate, it is important to recall the purpose of parole as explained by the High Court in Power v The Queen, namely, 'to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all of the circumstances in the case.'[52]
[51]Power v The Queen [1974] HCA 26.
[52] Director of Public Prosecutions v Pan [2022] VSCA 98 at [54].
198I have also had regard to Director of Public Prosecutions v Spottiswood,[53] another example where a sentencing judge imposed a lower non-parole period than that provided under s11A, as it was 'in the interests of justice' to do so.
[53][2021] VSCA 146 at [41].
199I have had regard to the provisions of s11A(4)(c) in the above cases. I have had regard to the broader considerations that inform the setting of a non-parole period and I have concluded that a non-parole period of 60 per cent of the head sentence represents a meaningful disparity between the head sentence and minimum term in this case that properly reflects the minimum term justice demands the accused serve before being eligible for release on licence. This period pays due regard to his prospects, which I have found to be good, whilst maintaining appropriate weight to be given to necessary and important countervailing factors when sentencing.
Parsimony
200Section 5(3) of the Act provides I must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which it is imposed. I have had regard to this principle.
Formulation of sentence
201In formulating an appropriate sentence in your case, Mr Arvanitis, I have had regard to current sentencing practices, one of the many sentencing factors I must have regard to.
202Neither counsel for the Crown, nor your counsel, referred me to truly comparable cases. I have mentioned the usefulness of the case of Sim, and Mr Blake also took me to the Court of Appeal matter of Hum,[54] again underscoring the magnitude of sentences imposed for child sex offences, but ultimately was of limited utility as it was so different in so many different ways.
[54]Director of Public Prosecutions v Hum (a pseudonym) [2022] VSCA 57 at [114].
203I have had regard generally to decisions of this court and our Court of Appeal in order to give appropriate weight to current sentencing practices.
204While sentences of other courts are not binding precedents but are merely historical statements of what has happened in the past,[55] and current sentencing practices represent just one of the factors to be considered, clearly, crimes of sexual penetration of a child under 16 in recent years have involved significant sentences of imprisonment of some years' duration.
[55]Director of Public Prosecutions v Dalgliesh [2017] HCA 41 at [83].
205In formulating an appropriate sentence, I have had regard only to the purposes for which sentence must be imposed. Previous sentencing decisions have made it clear of the importance of general deterrence and protection of the community in relation to sexual offences. I am satisfied in the circumstances of this case, the need for specific deterrence and the need for community protection is decreased somewhat. There is also a need for any sentence to facilitate your reform as appropriate.
206Ultimately, though, your serious offending must be denounced on behalf of the community and you must be justly punished for your crimes.
Parole
207To repeat with respect to parole, I want to emphasise the following:
208When affixing appropriate sentence for you and allowing for a parole eligibility component, I have had regard to the principle of parsimony.
209I have also had regard to the fact that parole is to provide for the mitigation of punishment in favour of reform through conditional release when appropriate. A non-parole period is merely the minimum term I determine justice requires you must serve, having regard to all of the circumstances in the case. It is not a decision that I make to release you, but rather, the Adult Parole Board, in due course, depending on your progress and risk that you present whilst in custody.
210Due to the mitigatory factors in your case, and repeating what I have said earlier, I have concluded it is appropriate to allow a meaningful parole component to your sentence, as I have stated above of 60 per cent. Accordingly, the non-parole period, that is, the period of imprisonment to be served before which you become eligible for parole, takes into account the mitigatory factors in this case and is designed to facilitate your reintegration back into the community, and ultimately, hopefully, your rehabilitation.
Sentence Imposed
211I come now, Mr Arvanitis, to the portion of my remarks where I do pass sentence on you. As I have said earlier, there is no alternative to me but to impose a head sentence and non-parole period to be served immediately, and that will be as follows:
212On Charge 1, supply a drug of dependence to a child, you are convicted and sentenced to 20 months' imprisonment.
213On Charge 2, sexual penetration of a child under 16, you are convicted and sentenced to seven years and two months' imprisonment.
214I direct that eight months of the sentence imposed on Charge 1 be served on Charge 2.
215This brings about a total effective sentence of seven years and ten months.
216Consistent with the declaration findings I have made earlier about setting a non-parole period that is 60 per cent of the head sentence, you will serve a minimum of four years and nine months before being eligible for parole.
OTHER MATTERS
Section 6AAA
217Pursuant to s6AAA of the Sentencing Act, but for your plea of guilty to these charges I would have imposed a total effective sentence of nine years and ten months and I would have set a non-parole period of six years and ten months.
Pre-Sentence Detention
218You have been in custody since your arrest on 5 August 2022. Pursuant to s18 of the Sentencing Act, I have declared that you have served 542 days by way of pre-sentence detention and such a declaration will be entered into the records of the court.
Sex Offenders Registration Act
219Finally, sexual penetration of a child under 16 is a Class 1 offence pursuant to Schedule, Item 1 of the Sex Offenders Registration Act 2004 (Vic) (SORA) and pursuant to s6(1) of the Act, upon being sentenced you automatically become a registrable offender. Pursuant to s34(1)(b), having been found guilty of a single Class 1 offence, the mandatory reporting period is 15 years.
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