Director of Public Prosecutions v Aston (a pseudonym)

[2016] VCC 1910

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JEREMY ASTON

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	9 December 2016
CASE MAY BE CITED AS:	DPP v Aston (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 1910

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. M Casey
For the Accused	Mr P. Smallwood

Pages 1 - 12

 

 

HER HONOUR: 

1Jeremy Aston[1], you have pleaded guilty to two charges of sexual penetration of a child under sixteen.  The facts underlying your offending are as follows.  The complainant, Charlotte Bayly[2] was fourteen years old at the time of this offending and living with her mother and younger siblings in the Bannockburn area and attending school in Geelong.  She travelled to and from school by bus.  You at the time were twenty-nine and living with your father and brother in North Box Hill.  During the period of the offending, that is between 11 and 15 September 2015 the two of you were accessing a social media site named KIK friends, seeking people to communicate with in Australia. 

[1] Jeremy Aston is a pseudonym.

[2] Charlotte Bayly is a pseudonym.

2Around late August 2015, Charlotte began communicating with a contact "Jeremy", that being you.  The two of you agreed to disclose your personal mobile numbers to each other for more planned contact, which continued by way of text messages.  You asked Charlotte to move on to a relationship.  During this contact and before the two of you actually met face to face, Charlotte told you she was fourteen and you told her you were eighteen.

3In early September the two of you arranged to meet on 11 September 2015 whereby you would drive to Geelong and collect Charlotte from school.  On that day you drove your car from Box Hill to Geelong and parked in a street near the school where Charlotte met you.  You drove her to the Bannockburn Lions park nearby and the two of you began kissing.  Charlotte lifted her top and you touched her breasts and you undid your trousers and exposed your penis and Charlotte performed oral sex upon you.  This offending underlies Charge 1 on the indictment, sexual penetration of a child under 16.

4You then drove Charlotte to the Bannockburn shops from where she walked home.  The two of you continued text messaging each other, a large number of those text messages included conversations about your meeting on
11 September.  It also included conversations about plans to have sex on

[3] Scarlett Mansell is a pseudonym.

15 September 2015.  On that date you sent numerous text messages to her advising her of your travel to Geelong to pick her up and arranging again to collect her from school.  You did then and drove again to the Lions park where in the front seat the two of you kissed and tugged at each other's clothes then moved to the back seat where you had sexual intercourse with Charlotte but without wearing a condom.  You then drove her to the shops for her to walk home but while she was doing this she was collected by her mother, Scarlett Mansell[3] who had been looking for her. 

5Ms Mansell questioned her daughter and located some of the text messages from her phone, which she took possession of and sent a text message to you advising you that she was Charlotte’s mother.

6On 17 September 2015 Ms Mansell was contacted to collect Charlotte from school and she then asked her mother to take her to the doctor, telling her about the sexual intercourse.  About a week later Ms Mansell discovered her daughter had got her mobile phone back, unbeknownst to her, and had been receiving a number of text messages from you stating, amongst other things, that you were scared of going to gaol, that you were aware that what you did was "stupid" and offering to pay Charlotte $50 a week if she could persuade her mother not to report the matter to police.

7On March 28, 2016, police attended your home, arrested you and in your record of interview that day you made full admission is of the oral penetration on September 11, and vaginal penetration on September 15.  You admitted you knew Charlotte was only 14 and said you had discussed this age difference with her.  You did tell police, however, whilst planning the second meeting, you had not expected to do anything and decided that all you would do is kiss her.  You said that Charlotte had asked you in text messages about having sex and you had replied, "Ah, oh maybe, we will see" saying that in your mind you did not want to do it. 

8You entered a plea of guilty at committal mention stage on 28 July 2016.  The maximum penalty for sexual penetration of a child under sixteen is 10 years' imprisonment.

9I now turn to your personal circumstances.  You are now aged thirty and were twenty-nine at the time of this offending.  As I have said, you live with your father and brother in Box Hill North.  You have lived there since you were three.  Your father is a retired taxi driver and your mother was a nurse, who died in 2014 of lung cancer. 

10You had what your counsel described as a pretty good childhood but from Year 9 had problems with concentration.  It appears you had started smoking marijuana at that time.  You did not take school very seriously and left a week before your Year 11 exams at Blackburn high school.  You really have not worked since, although you have tried to get a forklift licence but were unable to pass the test.

11In 2007 at the age of twenty-one you were diagnosed with schizophrenia at which time you were suffering intense paranoia, convinced that everyone around you was going to kill you, and you were admitted to a psychiatric ward where you spent three weeks, finally being released on a Community Treatment Order which was rolled over on three occasions, that is lasted for four years, which is significant.  You continued to have problems at times with paranoia, suicidal ideation, had difficulties understanding what people were saying.  You attended upon a psychiatrist whilst on the Community Treatment Orders and in 2008 were declared eligible for a disability support pension, which you have been on ever since.

12In June 2008 you underwent a further admission in a psychiatric ward for a week at which time you were becoming angry and aggressive.  You were again assessed by a psychiatric triage in 2013, at which time your mother was declining and dying from cancer, which understandably, you found very traumatic.  You were reviewed by a consultant psychiatrist on 14 May 2014 and placed on Seroquel and Zyprexa which are anti‑psychotic agents and you take the antidepressant Esopram and the anti‑anxiety agent Valium.  You have a limited history of illicit drug use, comprising cannabis abuse in your early teens which you maintained until about three years ago and in your early twenties dabbled in ecstasy.

13On the plea, I received a report from Dr Walton, a vastly experienced forensic consultant psychiatrist who has particular expertise in relation to the diagnosis and treatment of schizophrenia.  He diagnosed you, unsurprisingly, as suffering from chronic schizophrenia.  Indeed, you were so diagnosed back in 2007.  Dr Walton said it would seem highly likely that your condition had been aggravated by extended cannabis use, but he noted this had not been a recent feature and stated that:

"The illness continues of its own accord at present, though active psychotic symptoms are in relative remission and currently". 

14You told Dr Walton that despite the sexualised context of the text messaging between yourself and the complainant in this matter, when the two of you met you did not intend to become sexually active with her stating that you wanted to talk and be friends but admitted that you had found it rather "thrilling" to exchange the sexualised messages.  That is because you had minimal prior sexual experience.  Your only sexual experience in fact was when you were 19 when you had an encounter with a prostitute which lasted for five minutes because of erectile failure on your part.  You told Dr Walton you have had a number of female friends over the years but have always been too nervous to enter an intimate relationship with any of them. 

15You told Dr Walton that you met the complainant near the school, that you drove into a park where the two of you engaged in kissing and that you said that the complainant asked for more.  You told Dr Walton you went along with it, saying, "I should never have gone along with it, I should have said no". 

16You said you believed the complainant was fully developed in terms of secondary sexual characteristics and that you had no interest in pre‑pubertal children, but told Dr Walton that, "In some ways I feel like a teenager" and therefore were more comfortable with her.  I will return to this aspect of the offending in a later stage in these sentencing remarks.

17You told Dr Walton that you have never experienced auditory hallucinations, as is often the case with persons suffering schizophrenia but that when you become mentally unwell, you are prone to paranoia and confusing feelings of unreality and disorganized thinking.  You have primarily been treated via ongoing psychiatrist treatment through Koonung clinic for a period of episodes of hospitalisation and then you are returned to the care of your practitioner, which is the case at present.

18You have found the aftermath of being charged with this offending extremely stressful and were briefly admitted to a psychiatric ward for two days from 8 July 2016, as a result of experiencing intense anxiety, a loss of appetite and marked insomnia.  You told Dr Walton that you were still not over the death of your mother, but you get along well with your father and brother with whom you live, as I have stated.  I note that your younger brother also has mental health difficulties, they being depression and anxiety.

19Dr Walton gave the following important opinion:

"As a matter of technicality, Mr Aston has engaged in paedophilic behaviour because of the age of the victim and the age gap between them, however, she is at least physically sexually mature and he was adamant that he had no interest in pre‑pubertal children." 

He went on to say:

"I certainly do see this man's chronic schizophrenia as relevant to the offending.  Mr Aston is a person afflicted by chronic and severe social anxiety and specific anxiety about entering an intimate relationship.  Effectively he is psychosexually under developed and thus the psychological age gap between himself and the victim was much less than the chronological interval and it is likely he found the company of a teenager less anxiety provoking than an adult woman closer to his age.  Essentially Mr Aston has engaged in inappropriately delayed pseudo adolescent sexual experimentation with the victim." 

20He further stated:

"Somewhat unusually for a person suffering from chronic schizophrenia where the expression of emotion is often blunted or distorted,
Mr Aston does seem to express straightforward remorse". 

21And then further:

"I appreciate that it is a matter for the sentencer, but from a clinical perspective as outlined above, I do see this man's major mental disorder as having made a direct contribution to his offending.  It is well recognised that persons suffering from schizophrenia, even when not burdened by acute psychotic symptoms"

‑ and I depart here briefly to note that you were not suffering such symptoms at the time, nor are you now ‑

"are prone to rather impulsive ill‑considered behaviour especially so when caught up in intense social anxiety". 

22He opined that you, like any other person suffering from chronic schizophrenia, would find imprisonment"

"more onerous than the normal prisoner." 

23He stated that,

"As Mr Aston is reasonably well, as is the case at present" ‑

and again I depart to note that he found you to be extremely anxious in relation to this court experience ‑

"there is no reason to suspect that he may not fully appreciate the specific deterrent component of any particular disposition but those considerations may well be lost in states of acute psychosis". 

24Dr Walton concluded,

"Arguably, Mr Aston is an inappropriate vehicle for the expression of general deterrence". 

25I have quoted at length from Dr Walton's report because in my view it is particularly significant.  Let me make it clear that in repeating your comments to Dr Walton as to the sexual maturity of the complainant I am in no way seeking to undermine the serious wrongness of your actions.  For very good reasons, the question of consent is not a relevant one in the proof of sexual penetration of a child under 16.  The complainant at age 14 was at a critical stage of development in her life and the damage that a sexual relationship could do to her with a much older man is incalculable.  It can have incredibly detrimental effects upon critical milestones in her life, educationally, socially and sexually, that can then bedevil her throughout her adulthood.  The immaturity inherent in a 14 year old girl renders her most incapable of making decisions around sexual relationships that are in her best interests. 

26It is relevant here to refer to the victim impact statement tendered on the plea which was not made by the complainant but by her mother.  It graphically illustrates, in my view, the ripple of ill‑effect that such inappropriate sexual contact can have.  The complainant's mother stated:

"The day I found out I have never been the same.  I don't know how a man of 30, knowing everything about a young girl being 14 years old could possibly want anything to do with her, whispering sweet nothings to get what he wanted.  My heart has been breaking ever since". 

She continued:

"It (relationship between yourself and her daughter) changed my family, my world as a caring, loving, trusting family to a scared, constantly looking over shoulders, checking devices, losing fate and trust and confusion as to why, why did this happen to us". 

She went on:

"It has changed my daughter not for the good.  When you are made to believe that someone is so intuitive at an adult level then realise it was altogether untrue (being at a child's level) was pretty hard and heart breaking for her". 

27Ms Mansell went on:

"I have been a mess because of this.  My daughter lost her innocence, self-respect, her fate and trust.  It has been a constant battle to help her regain this.  I am shattered this happened to my daughter at such a young age.  I hate that it is constant struggle of where is she, who she is with, who is she talking to, who is she texting, what if?  I'm not sure what else to say except that I am always thinking about it.  It has made me sick, I am on medication and scared.  Scared that I had no idea of what was happening and what could have happened, that I couldn't stop it, that I couldn't help for protect my little girl.  This has challenged me in my life as a parent and as a human". 

28During the plea hearing I was directed by both prosecution and defence to the large number of text messages exchanged between yourself and the complainant.  They are indeed of a sexualised nature on both sides, they were entirely inappropriate and I also accept the prosecutor's submission that on reading them one could not be satisfied in your answers to police that you had no expectation of sexual activity on the second occasion that you met.  There is no doubt that your actions have resulted in a vast degree of suffering for the complainant's mother who was a single parent, bringing up three children.  You have made her position an even more intensely insecure and anxious one as regards the care and safety of her daughter.  She had, she said, expected that her daughter would "know the difference between good and bad, sense danger, everything that they are taught about the internet".  Sadly this has proved not to be case and in a sense, Ms Mansell’s worst fears, as would be the worst fears of any parent of a fourteen-year-old daughter have been realised.  She now knows that her daughter has engaged in unprotected sex with a twenty-nine-year-old man behind her back.  Hopefully, having attended the plea hearing, the complainant's mother, Ms Mansell, has some understanding of why at your age you acted as you did with a fourteen-year-old child.  It cannot be expected, however, that this would in any way lessen the gravity of the impact that your offending has had upon her.

29Offending of this kind almost always, inevitably, attracts a sentence of imprisonment to be immediately served.  Both specific and general deterrence aspects demand this.  I have anxiously considered this matter.  I am very concerned that you are a person who, as a mature adult, engaged in the communication and sexual relations that you did with a fourteen-year-old girl.  I do accept that you were not predatory.  I do accept that you, yourself, are very limited in terms of your own sexual experience and that this, together with your psychiatric illness has placed you in a situation which most twenty-nine-year-old men would not have found themselves in and that this largely does explain why you continued in the way that you did with the fourteen-year-old Charlotte.

30I have concluded that this offending does require that you serve a term of imprisonment to be immediately served but for the following reasons, it will be far shorter than would otherwise be the case.  You will then be released upon a Community Corrections order.  One, you have pleaded guilty at an early opportunity and were extremely co‑operative with police.  In cases of this kind, where often a plea of guilty is not made even in the face of extremely strong evidence and courts and victims are dragged through the trauma of giving evidence and the community the time and expense of a trial, your cooperation and your plea of guilty are of significant mitigatory value. 

31Second, I am satisfied that your moral culpability is somewhat lower in this case because of your own sexual social developmental delay and your well entrenched schizophrenia condition.  I accept Dr Walton's opinion as to the role this has had to play in your offending.  I specifically do not find it has a causative effect in the offending in the way described and required by the first limb of Verdins but do find that it interfered with your capacity to reason appropriately and make what should have been a sensible decision once you came in contact with Charlotte and discovered her age. 

32Three, you have no prior or subsequent relevant offending.

33Four, your illness will make service of imprisonment much harder to bear than an ordinary prisoner.

34Five, I do not, as I have said, find your offending to be predatory or indicative of you having paedophilic tendencies.

35Six, I accept Dr Walton's view that you are arguably not a suitable vehicle for general deterrence.

36I have had you assessed for a community corrections order and you have been found suitable for placement on this order.  Could you stand up, please, sir.

37On each of the charges you are sentenced to two months imprisonment and you are then to be released on a community corrections order for a period of two years and six months.  Those sentences will run concurrently.  Before I can place you on an order I have to explain the conditions of it because I must gain your consents to that order.  They are that when you are released from prison you must, within two working days, report to the Community Corrections office.  Whilst you are on the order you must not commit any offence punishable by imprisonment, that is for the next two and a half years.  If you commit an offence, Mr Aston, you will be brought back before me and I will resentence you for this offending.

38Three, you must report to and receive visits from the Community Corrections office.

39Four, you must report change of address or employment to the Community Corrections office within 48 hours of that change.

40Five, you may not leave Victoria without the permission of the Community Corrections office.

41Six, you must not attend upon the Community Corrections office whilst under the influence of drugs or alcohol.

42Seven, you must obey all lawful directions of the Community Corrections office.

43I am going to order that, as a special condition, that you attend for assessment and treatment for mental health difficulties and I am going to order that you undergo a sex offenders program.  Are you prepared to enter this order? 

44OFFENDER:  Yes, Your Honour. 

45HER HONOUR:  Thank you.  Have a seat please, sir.  I declare that had you not pleaded guilty, I think I am bound to because it is a combination. 

46MR SMALLWOOD:  Yes, Your Honour. 

47HER HONOUR:  Pursuant to s.6AAA I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of two and a half years and order that you serve a minimum term of 14 months. 

48MR SMALLWOOD:  As the court pleases. 

49MS CASEY:  And the only other matter is the reporting under the sex offenders.

50HER HONOUR:  Yes, how long is it? 

51MS CASEY:  It is for life, Your Honour.

52HER HONOUR:  You will be placed on the sex offenders register for life, this a mandatory, there a no discretion.  The papers will be served upon you and Mr Smallwood will explain to you your obligations under that register.  I am sure he has already gone through that with you.  Thank you Mr Aston, we will just prepare the papers.

53What I am going to do ‑ ‑ ‑

54MS CASEY:  Sorry, Your Honour, just one other matter that I neglected to mention was the application for a forensic sample.

55HER HONOUR:  I don't think it is required in this case and I am not prepared to grant it.  Thank you.  I don't expect this to happen again but, as I said, Dr Walton's report is a very important one and I am going to ‑ what I have done is, I am going to send a copy of Dr Walton's report with your client down to the cells and we will make contacts with the appropriate prison authorities in relation to your client's management.

56MR SMALLWOOD:  As the court pleases. 

57HER HONOUR:  We will give you that report now, Mr Aston, to take down.  Mr Prison Officer, you make sure, I am sending the psychiatric report with Mr Aston because of his ongoing condition. 

58PRISON OFFICER:  Yes. 

59HER HONOUR:  Yes, thank you, is there anything else?  I thank counsel for their assistance in this matter, thank you. 

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