Director of Public Prosecutions v Baldwin (a Pseudonym)
[2024] VCC 937
•21 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LIONEL BALDWIN (A PSEUDONYM) |
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JUDGE: | His Honour Judge Kelly | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 May 2024 | |
DATE OF SENTENCE: | 21 June 2024 | |
CASE MAY BE CITED AS: | DPP v Baldwin (A Pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 937 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentencing – Sexual Penetration of a child – make threat to kill – youthful offender – low moral culpability – Bugmy – Verdins – delay – prospects of rehabilitation – registration exemptions.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offender Registration Act 2004
Cases Cited:Brown v The Queen (2019) 280 A Crim R 257; Clarkson v The Queen [2011] VSCA 157; Best v The Queen [2019] VSCA 124; Bugmy v The Queen (2013) 169 CLR 571; Marrah v The Queen [2014] VSCA 119; R v Mills [1998] 4 VR 235; DPP v Tokava [2006] VSCA 156; R v Merrett, Piggott and Ferrari (2007) 14 VR 392; Director of Public Prosecutions v Thomas; Wu [2016] VSCA 237.
Sentence: 15 Month Community Correction Order. 120 Hours Community Work & Therapeutic Conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Turner | Office of Public Prosecutions |
| For the Accused | Ms S. Joosten | Slades & Parsons Solicitors |
HIS HONOUR:
Introduction
1Lionel Baldwin,[1] you have pleaded guilty to two charges of sexual penetration of a child under the age of 16 and one charge of make threat to kill. The maximum penalties for these offences are as follows:
·Charges 1 and 2, Sexual Penetration of a Child Under the Age of 16 Years — 15 years;
·Charge 3, Threat to Kill — 10 years.
[1] A pseudonym.
2The offence of sexual penetration of a child under the age of 16 is a standard sentence offence and the applicable standard sentence is six years imprisonment pursuant to s 49B(3) of the Crimes Act 1958 (Vic).
3However, the date-range in charge 1 spans a time when you were under the age of 18. Section 5B(1)(a) of the Sentencing Act 1991 operates to exclude it as a standard sentence offence. Charge 2 remains a standard sentence offence. In applying the standard sentencing regime, I am guided by the principles enunciated in the case of Brown v The Queen.[2]
[2] Brown v The Queen (2019) 280 A Crim R 257.
4Charges 1 and 2 are ‘class 1’ offences under the Sex Offender Registration Act 2004 (Vic) (‘The Act’), and thus registration under that act is mandatory for you unless an exception pursuant to s 11B of the Act is established.
5You have no prior criminal history.
Circumstances of Offending
6You first met the complainant in early 2021 at a mutual friend’s house. She was 14 years old at the time and you were 17. You began a romantic relationship one week later and in March 2021, you and the complainant engaged in ostensibly consensual sexual intercourse involving penile-vaginal penetration. At the time this occurred, you were an adult and the complainant was under the age of 16.
7The sexual relationship continued for most of 2021. This is the subject of the course of conduct charge 1 – sexual penetration of a child under 16.
8During the relationship, there were occasions where the complainant was menstruating and so you engaged in oral sex where you inserted your penis into her mouth. This occurred multiple during your relationship and this offending is the subject of the course of conduct charge 2 – sexual penetration of a child under 16.
9In late 2021 you sent a number of text messages to the complainant which included threats to kill them. These texts form the basis of Charge 3 — Threat to Kill. This is a rolled-up charge. The complainant sent these messages to her friend Anne-Marie Crowther[3] and later provided them to the informant.
[3] A pseudonym.
10In October 2021, the complainant ended the relationship after advice provided by a friend Jonathan Ainsworth.[4] Towards the end of 2021, she disclosed the existence of her sexual relationship with you to several of her other friends.
[4] A pseudonym.
11On 23 February 2022, she disclosed to a Mental Health Practitioner which resulted in a mandatory report being made to the Department of Families, Fairness and Housing who then notified the local Sexual Offences and Child Abuse Investigation Team (‘SOCIT’).
12On 2 March 2022, the complainant attended the office of the local SOCIT and she provided Video Audio Recorded Evidence.
13In early 2022 you were arrested by police and a recorded interview was conducted. You admitted to having consensual sex with the victim, knowing she was under the age of 16 at the time.
Victim Impact Statement
14A Victim Impact Statement was tendered and read aloud at your plea hearing. In it, your victim told the court that as a consequence of your offending, she lost her dignity and happiness and had to overcome things that a teenager should not have to think about at her age.
15She told the Court that her relationship with her friends and her family was impacted and that after the relationship, she started to feel unsafe around men. She said that despite her suffering, she has persevered and is happy having recovered mentally and physically.
Defence Submissions
16Ms Joosten on your behalf submitted that having regard to all the relevant factors, a Community Corrections order would be a just and proportionate sentence.
Prosecution Submissions
17Mr Turner on behalf of the Prosecution submitted that a custodial sentence is within range and argued that there are a range of courses available in custody aimed at addressing family violence and similar patterns of behaviour. He conceded that in the absence of aggravating features, rehabilitation is the primary concern in the Court’s instinctive synthesis. He also accepted that a sentence which combines gaol and a community correction order is within range.
Objective Gravity & Moral Culpability
18In relation to charges 1 and 2, Ms Joosten acknowledged that by nature these are serious offences but submitted that your offending falls within the lower end of the range of seriousness, for the following reasons:
(a)There is a modest age disparity between you and the victim;
(b)You were not in a position of trust;
(c)The offending involved ostensible consent despite the victim’s age;
(d)The relationship lasted less than a year;
(e)The relationship was not secretive, and both your parents and the victim’s parents were aware of it;
19She relied on the cases of Clarkson v The Queen,[5] and Best v The Queen,[6] to submit that the court should view your moral culpability as reduced.
[5] Clarkson v The Queen [2011] VSCA 157, [7].
[6] Best v The Queen [2019] VSCA 124, [41]-[42].
20In relation to charge 3, she submitted that the threats were not made in person and were not accompanied by violence as is often the case for charges of this nature. Accordingly, she argued that this is a modest example of its type.
Personal Circumstances
21You were born in Frankston, in 2003. You are now 21 years old.
22You have 3 older siblings who you have minimal contact with.
23Your parents separated when you were young. They had a volatile and violent relationship exacerbated by mutual drug dependence and mental health issues. As a child, you observed physical violence between your parents including an instance where your mother stabbed your father.
24After your parents separated, your living arrangements were disrupted. You initially spent time in foster care before you were placed in the care of your maternal grandparents for a brief period. This time was marred by conflict and after an argument with your grandfather, you ran away from home to sleep in an abandoned house. You were not located by police for two weeks and after this, lived with your maternal aunt for a stint.
25You returned to your mother when you were an adolescent. Throughout your childhood, your mother experienced serious mental health issues and was admitted to psychiatric hospitals on several occasions. Your father struggled with a drug addiction and spent time in prison but despite these difficulties, you maintained a close relationship with him.
26You have had three significant romantic relationships. Your first was as an adolescent which lasted two years. Following that, you commenced a relationship with the victim in this matter and that relationship lasted less than a year. In 2023, you commenced a relationship with a woman who gave birth to your child earlier this year. Your relationship ended shortly after.
27You struggled at school and were diagnosed with dyslexia and dyspraxia. You experienced bullying and left before VCE having retaliated against your bullies. After leaving school, you obtained your white card in the field of construction induction training and held jobs in delivery work, landscaping and labouring for a glasswork company. In 2023, you ceased working after you started to experience seizures. You are now currently unemployed.
28You have experienced seizures since you were young and also suffer from severe migraines and vertigo. You report these conditions worsening in in recent years and you undertook scans to determine the cause but have yet to receive any diagnosis.
29Your drinking has escalated since you began at age 16 and you report drinking most days. Between age 16 and 19, you report regularly using cannabis after being introduced to the drug by your friends and your father. You ceased after experiencing auditory hallucinations while under the influence.
30You report having diagnoses of ADHD, dyslexia and dyspraxia. You also report a history of depression including self-harming behaviours and an attempted suicide when these offences were initially reported to the police.
Verdins
31You were assessed by Ms Gina Cidoni, a forensic psychologist and she provided a report dated 2 December 2023 and a supplementary report dated 24 January 2024.
32Ms Cidoni writes that you present with borderline cognitive ability and a full-scale IQ of 74. You struggle with complex thinking and reasoning, particularly verbal reasoning.
33According to her you present with the following diagnoses:
a)Major Depressive Disorder — including symptoms of extremely severe levels of psychological distress;
b)ADHD;
c)Post Traumatic Stress Disorder – including symptoms of hyper arousal, re-experiencing and avoidance symptoms, along with negative alterations in cognition and mood;
d)Borderline personality traits; and
e)Alcohol use disorder.
34Ms Cidoni observed that your traumatic childhood is a likely contributing factor to your mental health and substance abuse issues. She assessed you as falling within the low-moderate risk of sexual re-offending.
35Ms Joosten submitted that all limbs of Verdins are enlivened in your case. She relied on Ms Cidoni’s report and drew the court’s attention to the following passage:
His cognitive challenges influence his comprehension and working through complex rules and standards, possibly affecting his interpretation of consent, communication, and the repercussions of his actions. The limitations in processing speed and verbal comprehension may have curtailed his understanding of the gravity of the legal age of consent and the ramifications within his relationships. Additionally, his cognitive profile indicates a tendency towards misreading social cues and inappropriately managing stress, which could lead to problematic decision-making and behaviours.[7]
[7] Report of Mr Simon Candlish, Psychologist dated 3 May 2024, [110] (‘Candlish Report’).
36It was submitted that your mental health issues are likely to have impacted your decision-making and relationships, particularly in relation to understanding the gravity and impact of the age difference between you and your victim. I accept that your moral culpability is reduced in this way, and I accept that specific deterrence and general deterrence need to be sensibly moderated.
37I also accept that limbs 5 and 6 of Verdins are engaged. I note that Mr Candlish writes that you would be an increased risk of suicide and self-harm if you were placed in custody and Ms Cidoni says that a prison term would weigh more heavily on you than on a person with unimpaired health. These opinions have not been contradicted by other evidence.
Bugmy
38Your childhood is described in the psychological reports tendered at your plea. Ms Joosten argued that you suffered the kind of deprivation discussed in Bugmy and Marrah.[8] The Prosecution submitted that your upbringing, whilst difficult, was not so deprived that the principles in Bugmy are enlivened in either the general or specific sense.
[8] Bugmy v The Queen (2013) 169 CLR 571, 594-5 [43]-[44]; Marrah v The Queen [2014] VSCA 119, [16].
39You have witnessed a number of traumatic episodes in your childhood, and you have suffered significant disadvantage throughout your life.[9] I accept that these experiences moderate your moral culpability in the general sense. Your culpability needs to be assessed considering the wholly dysfunctional manner in which you were raised.[10]
[9] Psychological Report of Ms Gina Cidoni dated 02 December 2023, 2-3 [18]-[29] (‘Cidoni Report’); Candlish Report (n 4) 3-4 [11]-[22].
[10] Bugmy (n 5) [40].
40I accept the opinions of Dr Candlish and Ms Cidoni that your upbringing has affected your ability to focus and learn and your ability to develop emotional awareness and regulation skills.[11] I accept that these deficits operated during your offending. Your moral culpability is also reduced in the specific sense identified in Bugmy.[12]
[11] Candlish Report (n 4) 14-15 [106]-[111], [116]; Cidoni Report (n 6) 8 [112].
[12] Bugmy (n 5) [44].
Youth
41You are a ‘young offender’ pursuant to s 3(1) of the Sentencing Act 1991. Ms Joosten submitted that your youth should be a primary guide in my instinctive synthesis[13]. It should inform my assessment of your moral culpability,[14] the centrality of your rehabilitation,[15] and the need to tailor a punishment which minimises or eliminates your exposure to adult offenders who might corrupt you .[16]
[13] R vMills [1998] 4 VR 235 (‘Mills’); DPP v Tokava [2006] VSCA 156; R v Merrett, Piggott and Ferrari (2007) 14 VR 392.
[14] Azzopardi v The Queen (2011) 35 VR 43, [34] (‘Azzopardi’).
[15] Ibid, [35].
[16] Mills (n 10); Azzopardi (n 11).
42In Azzopardi’s restatement of the law governing the sentencing of youthful offenders, the following principles were identified:[17]
Firstly, young offenders being immature are therefore ‘more prone to ill-considered or rash decisions’. They ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct. (citations omitted)
…
Secondly, courts “recognise the potential for young offenders to be redeemed and rehabilitated”. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, “is one of the great objectives of the criminal law”. The added emphasis for the purposes of sentencing on realisation of a young offender’s potential to be rehabilitated is further justified because of the community’s interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending.” (Citations omitted)
…
Thirdly, courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community.” (citations omitted)
[17] Azzopardi (n 11) [34]-[36].
43These principles apply to you. You have a history of ill-considered and rash decisions. You demonstrate poor insight of the consequences of your actions. Mr Candlish writes that you have an underdeveloped emotional awareness and regulation skills which, when paired with a limited capacity for consequential thinking, provides a background and an explanation for your offending.[18]
[18] Candlish Report (n 4) 8-9 [111]-[117].
44You were a young man when you committed these offences. You are still young. You have been assessed as having a low to moderate risk of recidivism. There are programs available to you to assist in your rehabilitation.[19] These programs are available in the community. You are vulnerable and sending you to adult prison is likely to retard your rehabilitation.
[19] Ibid 9 [120].
45I also note that had these allegations been brought to your attention and resolved at an early date you may still have been eligible for a Youth Justice Centre Order. Because of the delay in prosecuting you that option is not available. This has also influenced my decision not to send you to gaol.
Plea of Guilty
46Ms Joosten argued that you are entitled to a significant discount for your pleas. You made early and genuine efforts to resolve at the Committal Mention stage and your victim has not been required to give evidence. Your early plea is indicative of remorse, has utilitarian benefit and demonstrates a willingness to facilitate the course of justice.[20]
[20] Director of Public Prosecutions v Thomas; Wu [2016] VSCA 237.
Delay
47This offending spans most of 2021. Your victim complained to police and you were interviewed in early 2022 but not charged until 2023. I accept that there has been a delay in prosecuting these charges which was not your fault and that you have suffered anxiety and distress as a result of these charges ‘hanging over your head’.[21] I note that you have had limited interaction with your child while these charges remained outstanding.[22]
[21] Candlish Report (n 4) 7 [51].
[22] Ibid.
48I was told that you are unemployed and have not completed any further education due to a number of health challenges. You have completed several case management sessions with a counselling service to address domestic violence and strategies for combatting it. Another letter from that organisation's Specialist Family Violence Practitioner advises that you have attended four sessions of their “Dads in Focus” program. Your willingness to participate in these courses is positive. I accept that your rehabilitation has been advanced since you were charged with these offences.
49I have also been provided with a letter from Peninsula Health advising the court that you have attended six sessions of their Drug and Alcohol Services program. You continue to work on alcohol-reduction strategies with them. You have completed a referral to a program through Tafe which aims to reintegrate you into further education. You have also cleared your outstanding fines by engaging with the Work and Development Permit scheme. You have approached your GP to manage your anxiety and it has been identified that you would benefit from psychological counselling.
50You are entitled to a substantial sentencing discount due to the anxiety this delay has caused you and your estrangement from your son. You are entitled to a further discount due to the strides you have taken to reform, re-educate and rehabilitate yourself in the period since you were charged. Your rehabilitation is well-advanced.
51Prior to this offending, you had no criminal history. However, the report of Dr Candlish reveals your lack of insight into your own conduct. When you were asked if there was anything you recognised that you did wrong in relation to your offending, Dr Candlish observed your behaviour turned ’defensive’ and that you felt you were ’being manipulated’.[23] It is hard to assess the genuineness of your remorse in light of this observation, but I am prepared to find that your prospects of rehabilitation are excellent given the work you have done to date.
[23] Ibid 8 [56] - [57].
Community Corrections Order Pre-Sentence Assessment
52You were assessed as suitable for a Community Corrections Order in a pre-sentence report which was provided to the Court on 17 May 2024. In the report, you said that you thought you were in a ‘normal relationship’. You demonstrated insight into your offending in relation to Charge 3 admitting that you could have handled it differently. You were assessed as being a medium risk of general reoffending. A recommendation was made to the court that if programs aimed at reducing your offending were to form part of a Community Corrections Order, you would require at least 18 months to complete this condition due to wait list and program lengths. It is concerning that the court is being asked in this way to impose lengthy community correction orders to accommodate the non-availability of specialist programmes.
53You were assessed by the Mental Health Advice and Response Service on 17 May 2024 as having a complex history of depression, Post Traumatic Stress Disorder, childhood neurodevelopmental and behavioural disorders, learning difficulties, borderline personality disorder traits and alcohol misuse. The author of the report observed that you are emotionally vulnerable but that your mental state would not impede your ability to engage in a Community Corrections Order. Ongoing assessment and treatment of your mental health was recommended as a condition of any Community Corrections Order to promote your wellbeing and reduce the likelihood of your re-offending.
54I have had regard to both of these reports in determining my sentence.
Sex Offenders Registration
55Charge 1 and 2 are class 1 offences under Schedule 1 of the Act. You are therefore eligible for registration. An application is made on your behalf for exemption from registration pursuant to s 11A of the Act. In order to declare that you are not a registrable offender, I must be satisfied, on the balance of probabilities that at all relevant times the victim was 14 or over, that you pose no risk or a low risk to the sexual safety of one or more persons in the community having regard to the factors outlined in s 11B(1)(b) and that but for this offending you would not be a registrable offender. The application is not opposed by the Crown.
56It is uncontentious that the complainant meets the relevant age requirements at all times. I am satisfied based on the contents of your affidavit dated 29 February 2024, the report of Ms Gina Cidoni and the submissions made by your counsel that you pose a low risk to the sexual safety of the community. As I have already discussed, this offending falls at the lower end of the range of seriousness. You were and are still, a young man. You have no prior criminal history related to sexual offences and have never previously engaged in sexual misconduct or predatory behaviour.
57On the materials before me I am satisfied that the elements of s 11B(1) are met, and thus I declare that you are not a registerable offender under the act for either charge 1 or charge 2.
Sentencing Principles
58Section 5 of the Sentencing Act 1991 provides that the only purposes for which you may be sentenced are:
(a) To punish you in a manner and to an extent which is just in all of the circumstances;
(b) To deter you or others from committing similar offences in future;
(c) To facilitate rehabilitation;
(d) To manifest the denunciation of your conduct;
(e) To protect the community; or
(f) A combination of two or more of these purposes.
59Offending of this kind is serious and deterrence and denunciation have roles to play. However, you are young and you have excellent prospects of rehabilitation. You believed you were in a consensual relationship. No concerns were raised by your parents or your victim’s parents about the inappropriateness of your relationship. You pose a low risk to the sexual safety of the community and a non-custodial sentence aimed at your rehabilitation can meet the sentencing purposes just outlined.
Sentence
60What I am proposing to do at this stage, on Charges 1,2 and 3 is record a conviction and place you on a Community Corrections Order for a period of 15 months from today's date.
61Before I ask if you to consent to such an order being made, I have to tell you a little bit about the order, so you know what it means.
62The following Core conditions apply to all Community Correction Orders:
· You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.
· You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the Order.
· You must report to the Community Correction Centre within 2 clear days following your release from custody.
· You must notify the Secretary, or his or her nominee, of any change of address or employment within 2 clear working days after that change.
· You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.
· You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the Order.
63There are a number of other conditions attached to this Order, and they apply to you:
§You have to perform 120 hours of unpaid community work over a period of 15 months as directed by the Regional Manager. 60 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
§You must be under the supervision of a Community Corrections Officer for a period of 15 months.
§You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee.
§You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager.
§You must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional Manager.
§You must undergo any medical assessment and treatment that may include general or specialist medical treatment or treatment in a hospital or residential facility as directed by the Regional Manager.
§You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager.
§You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager, and I specifically refer to the offender-specific programs.
§You must attend for review of your progress and compliance or otherwise with conditions of the Order and you have got to come back before me on a date in December 2024 at 9.30am.
§I direct that I be advised by your Corrections Officer of any non-compliance of these conditions and I will then determine if the matter should be brought back before me.
64I can only impose a Community Correction order if you agree to such an Order being imposed. So, I need to tell you just a little bit more about that.
65I should advise you that if you contravene or breach that order by committing further offences you can be charged, and a sentence of imprisonment is one of the options that can be imposed for that breach.
66You can also be re-sentenced for the offences that are before me. One of the options available includes a term of imprisonment.
67So you have got to be extra careful for the next 15 months. No committing any further offences that might incur a term of imprisonment, otherwise you are back before the Court and you will be re-sentenced on these three charges before me. So you have to be extra careful.
68I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections officer, worker if you like, as part of this order, a substantial fine can be imposed.
69Now you are aware of all of that?
70Mr Baldwin please stand.
71On charges 1 and 2, sexual penetration of a child under the age of 16, you are convicted and sentenced to a community correction Order of 15 months pursuant to section 40 (1) of the Sentencing Act 1991.
72On charge 3, make threat to kill, you are convicted and sentenced to a community correction Order of 3 months. I direct that this Order be served concurrently with the sentence imposed on charges 1 and 2.
73Pursuant to s 6AAA of the Sentencing Act, I declare that, had you not pleaded guilty, I would have sentenced you to 6 months gaol followed by a CCO of 18 months.
74Pursuant to s 11B of the Act, I make a declaration that Mr Baldwin is exempted from registration under the act.
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