Director of Public Prosecutions v Bell
[2017] VCC 1588
•1 Nov 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No.CR-17-01269
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON BELL |
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JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 1 Nov 2017 | |
CASE MAY BE CITED AS: | DPP v Bell | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1588 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Harrold | |
| For the Accused | Mr J. Van Arkadie |
HER HONOUR:
1
Jason Bell, you have pleaded guilty to one charge of sexual penetration of
a child under 16. The charge is a representative charge which encompasses five separate instances occurring over a period of approximately one month, earlier this year.
2 The victim was 14 and you were 18 at the time. The two of you met when each of you were accompanying your respective fathers on a cruise to New Zealand during the Christmas holidays of 2016/2017.
3 When you returned to Melbourne, you maintained contact with the victim. You met her mother, who was a custodial parent.
4 You knew that she was only 14 and you had been told that you could not have sex with her because of her age.
5 Without her parents knowledge, the two of you began seeing each other. In the prosecution summary it was described as "dating".
6 Despite the warnings and your knowledge that she was underage, you had sexual intercourse with her on five occasions. You picked up from school on two occasions and took her to the hotel where you had been staying for the purpose of attending trade school. You picked her up from a shopping centre and took her to Geelong overnight on one occasion, when her mother believed that she was having a sleepover at a girlfriend’s house. On each of those three occasions, an act of sexual penetration occurred. You drove her to your home on a number of occasions and on at least one of those occasions, a further act of sexual penetration occurred. You visited her at her home on two occasions when her mother was not home. On the second of those occasions, the fifth act of sexual penetration encompassed in the representative charge occurred.
7 I appreciate that for sentencing purposes, it is the first act that is actually the subject of the charge, the other four ones being those other four acts that Charge 1 is representative of.
8 Sometime during that month of sexual activity, you induced the victim to send you intimate images of her. You concocted an elaborate lie, inventing the persona of a doctor and telling her, in the guise of that doctor, that you had an implant in your brain and which would reset your brain, causing you to lose your memory, unless she sent you those intimate images. A sign of how young and gullible she was, was that she believed it and sent intimate images to you by Snapchat. Because that was the means used to send the images, they self-erased shortly after you opened them. Fortunately for her, you did not preserve or circulate the images before they self-erased. This conduct, although not the subject of a separate charge, is relevant as part of the context of the offending and is relevant to an assessment to the gravity of the offending. It is clearly an aggravating feature to induce a child to send intimate images and to use elaborate subterfuge to do so.
9 Inevitably you were caught. The victim’s mother came home unexpectedly early from work after the fifth and final act that is involved in this charge. She found you hiding behind the victim's bedroom door. The mother confronted you and both you and the victim denied that there had been any sexual activity. You acknowledged to her mother you knew it was illegal to have sex with her daughter, given her age and you told her that you would have confessed, had it actually occurred. That was clearly another lie in a series of lies.
10 For some days after the victim’s mother found you and confronted you, you attempted to continue to contact the victim. Eventually the mother spoke to you and told you the victim did not want to speak to you and that you were not try and contact her again. From that time on, contact ceased.
11 The truth came out shortly thereafter. The victim’s mother took her to the police station and a complaint was made. The victim participated in a video/audio recorded statement and disclosed the circumstances of the first three acts of sexual penetration that had been detailed here. You were arrested and questioned about two weeks later. When interviewed, you not only acknowledged those three acts, but volunteered a further two acts, which are the other two I have identified. Your admission in respect to those other two acts, is the only evidence in respect of those.
12 You openly acknowledged, that you knew it was forbidden to have sex with the victim because of her age and that you had looked into it beforehand and that you were aware of the possible consequences of the offending beforehand, both to the police when interviewed and to the psychologist, Jeffrey Cummins, who assessed you for the purposes of this plea. You sought to rationalise your behaviour on the basis that you loved the complainant, you believed that she loved you too and so that excused the conduct.
13 Consistently with the admissions made when interviewed, shortly after you were charged, you indicated that you intended to plead guilty to an appropriately framed indictment. Plea negotiations resolved before the first committal mention and you were committed on a hand-up brief, without the need for any witnesses required to attend for cross-examination and your plea of guilty was then entered as a result on 23 June this year, three months after your arrest and the laying of the initial charges. So it is that the matter comes on for plea hearing and sentence, six months after being charged. That may seem a long wait for you and it may seem a long wait for the victim, but in our court terms, that is a rapid process, or progress through the court system and it can only occur where there has been co-operation with the process.
14 Sexual penetration of a child under 16 is a serious offence. It is punishable by a maximum of ten years' imprisonment. The mandatory provisions of the Sex Offender Registration Act also apply, which subjects you to reporting under that Act for a period of 15 years.
15
For young man, 18 at the time and now just turned 19, with no criminal history, with a steady history of school attendance and despite early exit from school at the age of 16, a history since then of full and continuous employment and steady progress through apprenticeship and trade school, you find yourself facing
a very serious criminal charge with very serious consequences.
16 You have, in effect, been brought up by your father, with as I understand it, considerable assistance from your grandmother. Your parents separated when you were a baby and by the time you were two, you were and have remained in your father’s full-time care. You have had little contact with your birth mother, but I accept that your paternal grandmother has played a significant role in your life.
17 Your father has his own flooring business and when you left school, you went to work with him as an apprentice carpet layer. You are being groomed to take over the business and your progress, both at work and at trade school, appears to have been good.
18 One, perhaps an unanticipated consequence of leaving school early and going to work for your father, has been a disconnection from your old school friendship group and no substitution of a workplace-related social network of people about the same age as you.
19 That social isolation, may in some part , provide some explanation for your pursuing the victim in the way you did, once the two of you were aware you were attracted to each other, after you had met on the cruise and despite your knowledge that she was below the age of consent and so it was illegal to have sex with her.
20
There are very good reasons why it is a criminal offence to engage in sexual activity with a child under 16. No matter how physically mature the child is and no matter how mature the child thinks she is in her thinking and reasoning, the law is a protective one, designed to ensure that children who have not yet developed the social and emotional maturity to appreciate the medium or
long-term consequences of their decisions, are protected from making mistakes that they may well regret later.
21
It is well-known and well documented that impulsive decision making, lack of consideration of even medium, let alone long-term consequences and inexperience of life generally, lead to young people making poor decisions, decisions that they often regret and decisions which can have significant adverse consequences for them in the short, medium and sometimes even
long-term.
22 The immaturity and impulsivity which is, in part, relied to explain why you embarked upon the course you did, also serves to demonstrate the very reasons why the law protects those under 16 from engaging in sexual activity, appreciating that they do not have the judgement or maturity to embark upon sexual relationships with people older than them. The gap between 14 and 18 is significant. It is more than an arithmetical counting of four years and very different from the gap say between a 26 year old and a 30 year old, where their life experience may well have evened out a bit. And that four year gap between 14 and 18, was particularly significant in this case, because for two years, you had been out of school and mixing in an adult working environment, whereas the victim was still a middle secondary schoolgirl.
23 It is clear, therefore, that subject to considerations personal you, denunciation, just punishment and deterrence play a significant role in the sentencing mix.
24 Children, and by that I mean, people who are children at law, those under 16 for these purposes, are entitled to be protected and at times to be protected from themselves, because it is accepted, they do not have the life experience, judgement and maturity to make decisions about engaging in sexual activity, decisions which can have far-reaching consequences for their sense of self, their sense of self-worth and their own bodily integrity and also for the relationships they have with their family members, those close to them who are seeking to protect them. It is a difficult time, adolescence. Children are stretching boundaries, parents are trying to understand what freedom they can safely give their children, so they can learn to make mistakes without them having devastating consequences, but at the same time, wanting to protect them and ensure they are protected. It is not always easy and this unfortunately was a situation that was, to some extent, although I do not think deliberately, exploited by you.
25 That is why it is not a mitigating factor to say that the activity that you engaged in with this victim, was consensual. There can be no true consent from a child under 16. It is the responsibility of the older person, even if they are themselves barely legally an adult, as you were, to exercise the maturity, judgement and restraint required of people who have achieved legal adulthood, in order to protect those younger than them, children who are entitled to the protection of the law.
26 It is relevant to assessing the seriousness of your conduct in that : first you knew that this was wrong and you had been told specifically of that: secondly that there was deception involved. You knew the victim was keeping seeing you a secret from her parents. By continuing to see her in those circumstances, you acquiesced in that and in a sense, authorised or licenced, the continuing of that deception. The very fact that she was seeing you secretly and that you did nothing to tell her parents that you were seeing her, indicates again your knowledge that what you were doing and seeking to have her do, was wrong.
27
There was active deception of her family, something which you encouraged and by your conduct, you clearly countenanced and condoned. And, of course, there was the deception involved in the Dr Sophie Brown story, which induced the complainant to provide you with the intimate images. She may now understand how serious that could have been and she may be counting herself lucky, luckier than the young just adult woman who was so grossly deceived by the Richmond footballer, whose case has been so widely reported in recent times. That is, the footballer who circulated intimate images of
a woman he knew and who apparently had been in a relationship with some time in the past. He circulated those images of her, not only without her consent, but after he had falsely told her that he had deleted the images at her request.
28
It is a salutary example of how a person, the subject of an intimate image, loses control of what happens to it, once it is in the hands of someone else. So she should indeed be counting herself lucky, but also understanding that you had an integrity about this, that you did allow those images to
self-erase and not do anything further with them, so as to have a more lasting image of a time that she clearly now regrets.
29 What then are your circumstances, the personal circumstances that operate to balance punishment, deterrence and denunciation? I have already noted your age - or rather your youth. You were only 18 at the time, now just 19. The law rightly regards you as a youthful offender and you are rightly entitled to have taken into account the importance of imposing a sentence that encourages rehabilitation, as well as punishing, denouncing and deterring. You are entitled, not only to have your youth, but the absence of previous convictions and your history of steady application to study and work, count in your favour and count in your favour as weighing more heavily in favour of encouraging rehabilitation, than may be the case in a person of mature years.
30 You are fortunate too to come from a stable family background. Your father and grandmother have clearly provided you with a stable and loving environment. They are both at court today to support you and they provided testimonials which spoke in practical and detailed terms of the family values they have sought to imbue in you and to model to you and to your otherwise positive response to that. A former partner of your father's wrote in like manner and I take that too into account.
31
Those factors, together with the results of the assessment conducted by
Mr Cummins, all indicate that you are, as Mr Cummins concludes, at low risk of offending in like manner again. They also indicate that you are amenable to the sort of counselling and treatment which is available and which, if undertaken, can help sustain the likelihood that you will not offend in like manner or any other manner again.
32 Mr Cummins used a combination of well-respected assessment tools for the assessment of risk of sexual re-offending, as well as the exercise of clinical judgement, based on the results of the application of those assessment tools. He concluded and I accept his opinion that you are at low risk of re-offending in like manner. I accept his recommendation that is prudent for you to complete an offence-specific treatment program, that is to participate in a sex offender treatment program.
33 Although I accept that you have learnt a hard and valuable lesson from this, to be at the age of 19, sitting in the dock in a courtroom such as this facing such a serious charge, has clearly been a sobering, a very sobering experience for you. But the fact that you were able, at the time, to rationalise your conduct, by reference to, "We loved each other" and to embark upon the sexual activity you did with the victim, knowing it was wrong, but because you said that love overcame it, indicates, in my view, that you may well still be in need of programs that will better teach you respect for women, respect for boundaries and respect for the law.
34 In my view, the needs of denunciation, punishment and deterrence, both general and specific, can all be met by a sentence which does not require you to serve a term of imprisonment.
35
Your youth, your otherwise good life, your early plea of guilty and you submission to and participation in counselling to date, all indicate, as does
Mr Cummins' report, that you are at low risk of re-offending. By contrast, I agree with Mr Cummins' opinion that, were you to be sentenced to a term of either youth detention or adult prison, that many of those powerful protective factors that are currently in existence and point to you being at likely low risk or
re-offending, could be challenged and that you would be much more likely to be exposed to people with more seriously anti-social and criminal attitudes than you have displayed to date and therefore that your risk of committing further offences would be increased, rather than reduced.
36 I also accept, having regard to your youth, your vulnerability and the absence of any contact with the criminal justice system to date, that a term of detention or imprisonment would be likely to have a significant effect on your mental wellbeing.
37
It is a heavy burden for a 19-year-old to carry a conviction of this nature against his name. I have decided, although I have a discretion to consider whether to impose a conviction or not, that it is appropriate to impose a conviction in
this case. These were five - I am sentencing you for one act, but in the context of five acts, where you knew from the start it was wrong and were told not to and where there was other behaviour as well. It is that persistence, rather than a one-off instance, and in those circumstances, that leads me to conclude that it is appropriate in the circumstances to record a conviction against your name. I take that to be a punishment in itself. I also take that to stand as a significant deterrent for other young men who are like-minded to think that their testosterone will take them further than their clear judgment and their understanding otherwise of what is right and wrong.
38 It is important to understand respect for and adherence to the social and legal norms of our society and to put them above personal pleasure or personal desire and that is why I have decided the deterrent and punitive effects of the recording of a conviction, should occur, but should be counted as a significant punishment in themselves.
39 In my view, the combination following from that of the punitive and rehabilitative features of a community corrections order, following upon conviction, achieves the appropriate balance between, on the one hand, just punishment, denunciation and deterrence and on the other hand, acknowledging what you have done in your young life, how much of it has been for good, not for bad, how you have used well of your time at school, at work and in your trade schooling and how, as a youthful offender, it is important to give proper weight to the importance of imposing a sentence that not only punishes, but actively encourages rehabilitation.
40
You have been assessed and found suitable for a community corrections order. I am satisfied, having regard to the discussions I had with your counsel, that both you and your father understand that compliance with the conditions of the community corrections order must be given priority over work commitments.
I am also satisfied that you understand that it is up to you, not only to negotiate with your father in relation to release from work, but also to make arrangements to attend at all appointments required by Corrections, notwithstanding the fact that you are currently without your license.
41 If you breach the community corrections order that I am about to impose upon you, whether by non-compliance with the conditions or by the commission of further offences, Corrections can bring breach proceedings. It is likely then that you will be brought back, not only to this court, but before me. Depending on the nature of the breach, you may well face re-sentencing for the original offences, as well as punishment for the breach itself. Do you understand all of that?
42 I have been asked to make a forensic sample order. Notwithstanding the seriousness of the offending, I do not consider it necessary or appropriate to do so, having regard to your youth and the circumstances.
43 I am required, as I have mentioned, without having any discretion in the matter, to direct that you be placed on the sex offender register for the mandatory period of 15 years. I should note that, were Parliament to have given me a discretion in your case, I would have considered that it was not necessary, in order to achieve the ends of protection of the community, to make an order placing you on the sex offender register. The conduct itself and your response to it, does not indicate the sort of predatory or dangerous behaviour that would justify and that does so often justify the making of such an order.
44 I also consider that, in any event, the 15 years is just inappropriately excessive for somebody of your age and in your circumstances, having regard to the nature of the offending. Nonetheless, Parliament requires me to make the order and I will do so.
45 I must have provided to you a copy of the conditions of reporting under the Sex Offenders Registration Act. There is a receipt that accompanies that and I will ask you to consider whether you wish to sign that as an acknowledgement of receipt of the conditions of the order. You are not obliged to sign the receipt, the court record will show that you have in fact been provided with those conditions and the obligations upon you to comply with the conditions.
46 I will have those handed to you at the same time that the community corrections order is handed to you for signing.
47 Could you now please stand.
48
Jason Bell, on the charge of sexual penetration of a child under 16, to which you have pleaded guilty, you are convicted. You are ordered to serve
a community corrections order for a period of two years. That order commences today, 1 November 2017 and ends on 31 October 2019.
49
You must attend the Melton Community Correctional Service by 3 November 2017 at 4 pm. So the Melton Community Correctional Services Centre is at
83 to 85, Unit Street, Melton.
50 There are mandatory terms that apply to all community corrections orders. They are these:
· You must not commit another offence for which you could be imprisoned, during the time that the order is in force. That is just about any offence these days;
· You must comply with any obligation prescribed by Regulation 17 of the Sentencing Regulations 2011. That means, you must not be impaired by drugs or alcohol when you attend upon Corrections, or to any other meetings directed by them;
· You must submit to drug or alcohol testing, if directed to do so;
· You must report to and receive visits from the Secretary or delegate;
· You must let a Community Corrections officer know within two clear working days if you change your address or your job;
· You must not leave Victoria without first getting permission to do so from the Secretary or delegate;
· You must obey all lawful instructions from and directions of the Secretary or delegate.
51 In addition to the mandatory terms applying to all community corrections orders, I impose the following special conditions:
· You must perform 300 hours of unpaid community work, over the period of two years, as directed by the Regional Manager;
· I order that 100 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. If you fail to comply with the unpaid community work condition of this order, the Secretary or delegate may give you a direction to perform additional hours of unpaid community work, in accordance with s.83AU of the Sentencing Act;
· You must be under the supervision of a Community Corrections officer for the period of two years of the order;
· You must participate in programs or courses that address factors relating to the offending, as directed by the Regional Manager and I have specifically recommended participation in a sex offender treatment program.
52 Do you understand the effect and the conditions of this order?
53 OFFENDER: Yes.
54 HER HONOUR: Do you consent to it being made?
55 OFFENDER: Yes.
56 HER HONOUR: Thank you. I will have that handed down to you, along with the reporting conditions under the Sex Offenders Registration Act.
57 MR VAN ARKADIE: If I may have leave from the Bar table, Your Honour?
58 HER HONOUR: Yes, you may.
59 MR VAN ARKADIE: Thank you, Your Honour.
60
HER HONOUR: All right, I note that you have signed the receipt, acknowledging you have received the reporting conditions under the Sex Offenders Registration Act. You have signed the CCO and I have
counter-signed it. When a copy of that has been made and provided to you, you will be free to leave the court.
61 Can I thank both counsel.
62 MS HARROLD: Your Honour, I'm sorry to interrupt. There is a need for a 6AAA declaration because of the two year CCO that Your Honour's imposed.
63 HER HONOUR: I did not think I had to give a 6AAA with a CCO.
64 MS HARROLD: No, Your Honour, the legislation changed earlier this year. It is now for CCOs of two years or greater. There is a requirement for a 6AAA.
65 HER HONOUR: Thank you, I did not know that, Ms Harrold.
66 Pursuant to s.6AAA of the Sentencing Act, I declare that, but for your plea of guilty, I would have, subject to your being assessed as suitable, sentenced you to be detained in youth detention for a period of 18 months.
67 You can take a seat for a moment.
68 Ms (Indistinct), I just want to speak to you again briefly, if I may. This has obviously been a long and difficult process for you too. I meant what I said about growing up and adolescence being a difficult time. Parents do things that they believe are in their children's best interests and it is very hard when you are flexing your muscles and trying to become a mature young person and make your own decisions.
69 Sometimes parental restrictions can seem very difficult and unfair. I hope that this will, rather than drive a wedge between you and your parents, help all of you understand that this has been a difficult time for the lot of you, to try and manage these next years of growing up, so that you can love and respect what is really good about each other and work out better ways of telling your parents things, even if you think that they are not necessarily going to approve and of you being able to demonstrate to them that you can be trusted, that you are growing up, maturing and exercising sane judgment.
70 I hope that you can move on. I understand that this has been a hard time for you, but it does not have to define you and that you can live your promising future life as well and as happily as you can and understanding the love and support that you have got from your parents.
71 Thank you for your attendance today and thank you, parents, for your attendance today. It is not an easy job being a parent, is it? Thank you.
72 All right, thank you, we will adjourn.
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