Director of Public Prosecutions v Best
[2018] VCC 921
•14 June 2018
921
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT SITTING IN MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00516
CR-18-00517
CR-18-00518
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SCOTT BEST |
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JUDGE: | Her Honour Judge Pullen | |
WHERE HELD: | Ballarat [sitting in Melbourne] | |
DATE OF HEARING: | 25 May 2018 | |
DATE OF SENTENCE: | 14 June 2018 | |
CASE MAY BE CITED AS: | DPP v Best | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 921 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr M. Sharpley and Mr R. Casey | Office of Public Prosecutions |
| For the Accused | Mr J Westmore | AP Criminal Law |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses.
HER HONOUR:
1 Scott Best, you have pleaded guilty on Indictment C1711513 to three charges of sexual penetration of a child under 16. The maximum penalty applicable to Charge 1 is 10 years imprisonment and Charges 2 and 3, 15 years imprisonment. Each of the three charges before me involve different complainants, Charge 1, Kristen Hamilton[1], Charge 2, Samantha Hurst[2] and Charge 3, Jessica Bennett[3].
[1] Kristen Hamilton is a pseudonym
[2] Samantha Hurst is a pseudonym
[3] Jessica Bennett is a pseudonym
2 These crimes arise out of events which took place in Charge 1 between 30 January and 1 April 2016, Charge 2 between 1 July and 30 November 2017, and Charge 3, 24 August 2017.
3 Charge 2 is a course of conduct charge.
4
In addition to the charges on the indictment, you have agreed to me hearing and have pleaded guilty to three summary charges on Court reference
CR-18-0517, being Summary Charge 2, harass a witness (Jessica Bennett), Summary Charge 4 (as amended) referrable to contravening conditions of bail relevant to Jessica Bennett and Kristen Hamilton and Summary Charge 6, contravene a family violence order.
5 You have also pleaded guilty to Summary Charge 4, as amended, contravening a condition of bail on court reference CR-18-00518.
6 The penalties applicable to those charges are for breach of condition of bail, 3 months’ imprisonment or 30 penalty units, contravening family violence order, 2 years’ imprisonment or 240 penalty units or both, and harassing a witness, 12 months' imprisonment or 120 penalty units.
7 It is not necessary for me to recount in great detail the facts of this matter as they were opened in some detail with the prosecutor, consistent with Exhibit A. I will not summarise in great detail the prosecution opening, as it is available on the court file. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during your plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing.
8 At the time of your offending you were between 17 and 18 years of age and are 19 at sentence. Referrable to Charge 1, you were 17 years of age.
9 Turning to the complainants, Kristen Hamilton was 14 years of age at the time of your offending and is now 16, Samantha Hurst was 13 at the time of your offending and is now 14 and Jessica Bennett was 14 at the time of the offending and is now 15.
10 I turn to a brief summary of your involvement where Kristen Hamilton is the complainant.
11 Kristen knew you from Secondary College and met you when she was in Year 7 and you were in Year 10.
12 On or about March 2016 Kristen went for a sleepover at a friend's place. They left the house at night, met up with you and together went to another friend's home. Kristen and you stayed a short time before going to your home. At your home, you both went into your bedroom and you had sexual intercourse with her.
13 You and Kristen thereafter text messaged each other from time to time with her phone number saved into your phone as ‘Cum Slut’.
14 On or about 19 June 2017 Kristen text messaged you, which included arrangements for her to meet with you so that you could give her some cigarettes. The prosecution opening refers to that text message on 19 June 2017.
15 On or about 20 June 2017 text messages between you and Kristen included whether she wanted to go for a drive.
16 On or about 24 June 2017 text messages between you and Kristen included her saying ‘Fuck I hate boys’. You responding ‘You need a man’. Further text messages on or about 27 June and on 30 June 2017 involved arranging to meet up (Exhibit A, paragraph 12).
17 You also sent text messages to Kristen asking if she wanted to catch up on the weekend. She said ‘No’. You asked whether she would ‘Fuck Harry on the weekend’, which she refused. You then said ‘Me then’. She responded ‘No way’. The conversation continued with you referring to questions around your potential sexual involvement with her (Exhibit A, paragraph 13). There were further such text messages on 1 July 2017 involving sexual discussion by you with the victim. There were then further text messages that evening where you again referred to sexual conduct with Kristen.
18 On 29 July 2017 there were similar text messages sent between yourself and Kristen (Exhibit A, paragraph 15), then on 31 July 2017.
19 The prosecution opening also referred to text messages on 23 August 2017, also that on or about September and October 2017, you and Kristen communicated via Snapchat, which included photographs of her (Summary Charge 4, breach of bail by contacting Kristen via Snapchat).
20 I turn to the offending involving Samantha Hurst. On or about the beginning of July 2017 Samantha met you through friends. She told you on either the second or third occasion you met up that she was 13 years old.
21 About a week after meeting you engaged in sexual intercourse with Samantha. Thereafter, you would meet up three or four times a week and engage in sexual intercourse on approximately 30 occasions over a period of months at your home and in your car (Charge 2, course of conduct).
22 On 18 August 2017 Samantha attended a Community Health Centre and undertook a pregnancy test that was positive. She has since given birth to her baby.
23 On 23 August 2017 you were arrested and interviewed for the offences relating to Samantha.
24 Following that record of interview, you were bailed on your own undertaking on conditions that included you were not to go or remain within 200 metres of her address or any other place where the affected family member lived, worked or attended school/childcare.
25 At approximately 11.59pm on or about 23 August 2017, ie: the same day you were arrested and interviewed for offences involving Samantha, you attended at that address in your vehicle (Summary Charge 4 on CR-18-00518, breach of bail by going within 200 metres of that address).
26 Whilst at that address you spoke to Samantha 's sister, her sister’s boyfriend and her friend, Jessica Bennett. Jessica left in the vehicle with you.
27 On 28 August 2017 an intervention order was made at the Magistrates' Court against you, with Samantha the affected family member. Those conditions included you being prohibited from contacting her by any means.
28 Between about 15 and 19 October 2017 you and Samantha sent Snapchats to one another, including photographs of her (Summary Charge 6 on CR‑18‑00517, breach of family violence intervention order by communicating with Samantha via Snapchat).
29 Turning to complainant Jessica Bennett (Charge 3). Jessica met you through a friend. When you first met, she told you she was 14 years old.
30 Between 15 and 24 August 2017 text messages were exchanged between the two of you, in which you asked Jessica to have sexual intercourse with you (Exhibit A, paragraph 29).
31 On 23 August 2017, when Jessica got into the car with you, to which I have previously referred relevant to your attendance at Kristen’s address in breach of your bail, you and she drove around the area in your car.
32 While driving around you told Jessica of your goal of sleeping with 50 people, you were up to 47 and asked if she would have sex with you. This discussion as I say, within hours of your interview with police regarding Samantha Hurst and you being on bail. Your then offending against Jessica is very concerning, given that scenario.
33 At approximately 3.00am on 24 August you parked your car and you had sexual intercourse with Jessica.
34 On 24 August 2017 you were again interviewed by police, this time regarding your offending relating to Jessica. On 28 August, you were bailed with conditions including you not contact any witness for the prosecution except the informant and not to use any form of social media.
35 From on or about 3 September to about 6 October 2017, you communicated with Jessica almost daily by phone, including text messages and via Snapchat (Summary Charge 4, CR-18-00517, breach of conditions of bail by contacting Jessica via Snapchat).
36 During those communications, Jessica told you she had given a statement to police and had told them everything. You said you were going to get people to ‘smash her head in’, and you said ‘throw blocks through mother's window’ (Summary Charge 2, harass witness).
37 I turn to the police investigation. On 23 August 2017 the informant requested you attend the police station for interview regarding your offending involving Samantha Hurst. During the interview you admitted having sex with Samantha. When asked how old she was, you said ‘14, 13 maybe, I'm not sure’. When asked whether you were aware it was illegal to have sex with Samantha given her age, you said ‘It's not right’.
38 On 24 August 2017 the informant attended your address and you were taken back to the police station for the second record of interview, this time in relation to Jessica Bennett and breaching your conditions of bail regarding Samantha Hurst.
39 You admitted meeting up with Jessica at Kristen Hamilton’s address and that you had been bailed the night before to stay away from that address. You admitted having sex with Jessica in the car and acknowledged you had been told by her friends her age was 14.
40 On 23 September 2017 you again attended the police station at the request of police and were interviewed in relation to offences involving Kristen Hamilton You gave a ‘no comment’ record of interview, were charged and bailed on the same conditions the Magistrate had imposed on 28 August 2017. It was, of course, your right to answer ‘no comment’ to police questions.
41 On 12 October 2017 Jessica Bennett attended the police station, provided a statement and told police you had been in contact with her over the past month via her phone and Snapchat and that you had made threats towards her.
42 On 18 October 2017 you were arrested at your home address and your phone seized by police, which was found to have a message waiting under the Snapchat application for Samantha Hurst.
43 An aggravating feature of your offending, discussed with your counsel, was your failure to use a condom (R v Khem[4]), referrable to Samantha Hurst and Jessica Bennett. It was not clear from the depositions whether or not you used a condom with Kristen Hamilton. Samantha Hurst became pregnant to you as a result of your offending against her and has given birth (DPP v Dalgliesh[5]). The pregnancy and birth, in my opinion, is a ‘highly’ aggravating factor. In Dalgliesh, the court referred to a number of cases involving pregnancy and termination or birth. I am conscious, however, of the different offending in each of those cases compared with yours.
[4] (2008) 186 A Crim R 465
[5] [2016] VSCA 148
44 Your failure to wear a condom on occasions appeared to be a conscious decision by you. In your record of interview, you said you used condoms on some occasions and not on others.
45 You do not have any prior criminal history and I am aware of that.
46 You pleaded guilty to these offences at the committal hearing on 8 March 2018. The prosecution accepts your pleas of guilty were entered at the earliest opportunity, as do I. By your pleas of guilty witnesses have not been required to give evidence upon your trial and you have saved the court the time and cost of a trial. Your pleas of guilty have a utilitarian benefit. I accept your pleas of guilty reflect some remorse by you.
47 However, beyond your pleas of guilty I have concerns about the extent of your remorse, given the circumstances of your offending, including police interviews and your awareness of the illegality of offending with underage females, yet continuing to do so, in particular with Samantha Hurst and Jessica Bennett.
48 As at the date of your plea hearing you had spent 223 days on remand (up to and including 24 May 2018), by way of pre-sentence detention.
49 Pursuant to the Sex Offenders Registration Act 2004, Charge 1 is a non-class offence as you were a child when you committed that offence. Pursuant to s11(2) of the Act, the court may still order registration under the Act. Charges 2 and 3 are Class 2 offences. You were an adult when you committed those offences and pursuant to s6(1) and s34(c)(i) of the Act, registration was mandatory with the reporting period for life. Your counsel, Mr Westmore, agreed such classification and duration applied to you relevant to Charges 2 and 3.
50 There are a number of concerning aspects of your offending whilst not formally aggravating features, nevertheless, put your offending into context.
51 Your offending, in my opinion, shows an absolute disregard by you about having sex with underage females. You were clearly aware of their ages and in one record of interview said you understood the age of consent was 16. You simply did not care about your responsibility, a responsibility of which you were aware at age 17-18. I note Charge 1 occurred when you were 17, a ‘child’, consistent with Crimes Youth and Families Act 2005 (s3 Definitions).
52 I do not, however, accept that your immaturity meant you did not appreciate the seriousness of your offending. Your offending behaviour on the indictment and also the summary offences was very serious indeed.
53 There are a number of victims of your offending and they have suffered considerably in the manner described in their victim impact statements. The statements are eloquent and it is difficult to do justice to them in these brief sentencing remarks, but I have however, read those statements.
54 There was a victim impact statement sworn by Samantha Hurst. She was 13½ when she became pregnant to you. She was very scared, felt manipulated, used and worthless. As a result of your offending she had counselling and there was an intervention order in place until she turned 18. She did not see her friends and did not know if she had any friends any more. She gets up four or five times a night to feed and settle her baby.
55 She described the upsetting physical changes to her body as a result of your offending. She used to have lots of energy but was now constantly tired. She used to be a happy person, comfortable with how she looked. She felt people judged her. She had poor self-image and felt she would never be good enough for anybody, that no one would find her attractive.
56 She was scared that she would fail as a mother. When she fed her baby at night she looked at him and worried about the day he would find out about the awful circumstances of his birth. She did not know when to tell him what happened or what to tell him when he asked about his father. It made her scared and made her feel sick.
57 Life for her would never be normal. She would never be young and a teenager. She was 14 and felt old and ashamed of herself.
58 There was a victim impact statement from Sharon Cummings,[6] Samantha’s mother. She described that following Samantha's completion of primary school in 2015, just a year and a half later she was pregnant. Right up until the baby was born she did not know if Samantha would survive labour. She was so young, her body so small and she was in incredible pain. Her labour was traumatic. She described that Samantha was now 14 with a baby and it was difficult for her to see her young daughter dealing with the tiredness and stress of having a baby.
[6] Sharon Cummings is a pseudonym
59 She was very angry with you. You had shown no regard for the law or for Samantha. You did not use protection to ensure she would not get pregnant when she was just 13, barely out of primary school.
60 She described how difficult it was seeing her 14 year old daughter breast feeding and changing nappies when she should be at school, out shopping and going to the movies with her friends.
61 Sharon no longer had her own social life. She did not see her friends and her friends did not visit her.
62 Samantha had been involved with the Department of Health and Human Services, and they put strict rules in place regarding who the family could have around them, which made her feel like a prisoner in her own home.
63 She could not go out and leave Samantha and the baby home alone.
64 Samantha was only 14 and on the pension. She had no idea how to manage money and Sharon had to manage her own reduced pension to try and help Samantha manage, which was ‘tricky’. She constantly worried about Samantha's future, missing her childhood.
65 There was a victim impact statement from Lori Hamilton,[7] Samantha’s sister. She is 19 years of age, angry and sad that her baby sister had a baby forced upon her when she was just 14.
[7] Lori Hamilton is a pseudonym
66 She did not know you but when she thought about what you did to her sister she was sick and angry. She asked why would you not use a condom. That you did not care about Samantha's sexual health and did not have the decency to make sure she would not get pregnant. You just did not care.
67 When she found out Samantha was pregnant and just 13 she was shocked, angry and confused watching her baby sister and her stomach growing bigger. She looked so young. Then to see Samantha go through the pain of labour, she was in so much pain.
68 Lori had to take days off work to help Samantha through her pregnancy.
69 One of the saddest things for Lori was that Samantha was going to miss out on hanging out with her friends, going to movies, shopping for teenage clothes and going to parties with her friends. Samantha would miss the freedom of going to the beach or being at the pool with friends. If she did go to the beach or pool it would be with her son, showing the stretchmarks from her pregnancy.
70 Samantha would miss out on going to school and not get a proper and normal education.
71 It was ‘weird to see someone bringing up a child when she doesn't have the basic Year 8 knowledge and life skills’. Samantha did not get the chance to learn about how her own body works before she had pregnancy forced on her. You had taken all this from the family and Samantha because you just did not care.
72 Relevant to victim impact statements is also the notion of social rehabilitation and a number of authorities refer to the effects upon a victim of sexual offending, including DPP v Toomey[8], in which his Honour Justice Vincent referred to social rehabilitation citing DPP v DJK[9] (allowing of course for the difference in factual circumstances to the present case):
“… With respect to those statements, I repeat comments that I have made as a Sentencing Judge on more than one occasion. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the Judge who would of necessity, have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general, but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a Sentencing Judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view, they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.”
[8] [2006] VSCA 60
[9] [2003] VSCA 109
73 The effects upon a victim are a relevant sentencing consideration (see s5 Sentencing Act 1991). I am, however, conscious, that I must not allow the effects upon a victim to swamp the sentencing process.
74 Mr Westmore, in his written outline of submissions which I have read and upon which he relied, referred to Charge 1 and urged such involved a single occasion of offending when you were 17 years of age, and that is so. Despite being 17 this was nevertheless serious offending. General deterrence, he submitted, was not a relevant sentencing consideration for that charge, referring to CNK v The Queen[10]. He is correct.
[10] [2011] 32 VR 641 [6]-[15]
75 Charge 2, a ‘course of conduct’ charge involving Samantha Hurst, he conceded was particularly serious.
76 Charge 3, he urged, again involved a single occasion of sexual penetration, on that occasion with Jessica Bennett. I have already referred to the concerning circumstances surrounding that offending.
77 Mr Westmore referred to you being bailed on 28 August 2017, on conditions you not contact witnesses for the prosecution and not use any form of social media. That same day you were made subject also to a final intervention order prohibiting you having contact with Samantha Hurst.
78 You had breached your bail by communicating with Jessica Bennett and also committed the offence of ‘harass a witness’ when you found out Jessica made a statement to police about you. I have no doubt you were well aware of the bail and order obligations. Your statement to Jessica that you would get people to ‘smash her head in’, is particularly concerning.
79 Mr Westmore referred to your offending involving Kristen Hamilton having occurred first in time, yet you were not interviewed in relation to that offending until 23 September 2017. That you were 17 at the time of that offending and I am aware of that.
80 You were again bailed, however, and within a short period of time you communicated with Kristen Hamilton in breach of your bail and also communicated with Samantha Hurst in breach of the intervention order and bail, all, in my opinion, very concerning behaviour by you in complete disregard of orders made.
81 You were subsequently arrested and remanded in custody on 18 October 2017.
82 Mr Westmore confirmed your offending resolved at a committal stage, following negotiations between those representing you and the prosecution. The prosecution, as I understood, conceded your plea of guilty was entered at the earliest opportunity. I note also you made admissions to your offending in relation to Samantha Hurst and Jessica Bennett.
83 Turning to the charges specifically, Mr Westmore conceded that sexual offending against children was serious. There can be no doubt he is correct and the Courts have frequently said so. If any authorities are required on that, I refer to Burnett v R[11], Roosmalen v R[12], Wayland[13], Parente[14] and recently DPP v DJK[15], DPP v CPD[16], Clarkson v The Queen[17] and DPP v Dalgleish[18]. This list is by no means exhaustive or current.
[11] (1993) 70 A Crim R 469
[12] (1989) 43 A Crim R 358
[13] 14/9/1992 CA Victoria
[14] 20/2/1996 CA Victoria
[15] [2003] VSCA 109
[16] [2009] VSCA 114
[17] (2011) 32 VR 361
[18] [2017] HCA 41
84 Of course, when looking at other cases I am mindful of the difficulty comparing cases factually, as facts vary enormously case to case, as do all matters in mitigation and personal to an offender.
85 At the time of Charge 1, albeit when you were 17, in my opinion it was nevertheless serious offending.
86 Turning to Charge 2, as I have said, Mr Westmore correctly conceded that was the most serious charge. He conceded Samantha Hurst becoming pregnant was an aggravating feature, conceding the adverse impact of your offending upon her, referring to her victim impact statement.
87 Whilst Mr Westmore submitted that offending involving Samantha occurred prior to any police involvement with you, in my opinion, you were well and truly aware of her age and the illegality of a sexual relationship with her.
88 Regarding Charge 3, Mr Westmore referred to Jessica Bennett declining to make a victim impact statement. I interpret his submission as reflecting her attitude to your offending. I disagree. There can be many reasons why a victim does not provide a statement, including not wanting to have to relive your offending. It is purely speculative as to why Jessica Bennett or Kristen Hamilton did not provide impact statements. No conclusions on the material before me can be drawn from that failure.
89 Mr Westmore urged there are a number of factors which distinguished your offending, particularly Charges 1 and 3, from more serious examples of sexual penetration of a child under 16, which he urged reduced your moral culpability. That you were 17 at the time of Charge 1 and 18 at Charges 2 and 3. That the disparity between your age and the complainants ranged from three to five years, often greater disparity in other cases, and of course he is right. However, I note in that regard, Clarkson v The Queen[19] (paragraphs 40-42).
[19] [2011] VSCA 157
90 I also note in Clarkson:
“Of course, even where the offender is youthful and the age difference relatively small, the sentencing court will be astute to observe the legislative policy that children are to be protected against the harms associated with premature sexual activity.”
91 The Court in Clarkson referred to Simon v Western Australia[20]
“In Simon, the WASCA was concerned with a single act of sexual intercourse, between an 18-year-old male and a 14-year-old female who was a willing sexual partner. The Court accepted that there were strong factors in mitigation:
The appellant was young (either 18 or 19) and was only 4 or 5 years older than the complainant (who he believed to have been 15). He was immature for his age. There was no element of coercion, or even persuasion, and no breach of trust. The offence was isolated. The complainant, already sexually experienced, was a willing participant.
Steytler P said:
While these are telling factors, in my opinion they are not sufficient to have made it appropriate to impose any sentence other than one of imprisonment. As I have said, young people are intended to be protected, not only from sexual predators (I would not describe the appellant in that way), but also from themselves. This complainant was only 14 years old. The appellant believed that she was a year older than that but, even then, he should have appreciated that his conduct was inappropriate because of her age, even if he did not know that it was illegal. While the age gap was not as large as it is in many cases, it was not insignificant. As I have said, there was a difference of some 4 or 5 years. Even allowing for his immaturity, there is a significant difference between a 14-year-old and an 18-year-old.” [51]
[20][2009] WASCA 10
92 In my opinion, your moral culpability is not significantly reduced. In that regard, I also note amongst other matters there were three victims of your offending and your concerning offending against Jessica Bennett after interview regarding Samantha Hurst.
93 Mr Westmore urged, unlike other cases, you are not in any position of trust. Whilst that is so, your offending, in my opinion, was blatant and with complete disregard for your obligations regarding underage sexual encounters for your own sexual gratification.
94 Mr Westmore urged there was no evidence any of the victims were particularly vulnerable to harm. That, however, was addressed in Clarkson (paragraphs 52-53).
95 Mr Westmore referred to the absence of other often seen aggravating features in offending of this type, including that there was not any violence or threats of violence beyond the sexual penetration itself.
96 However in Dalgleish the Court noted regarding a submission “there was no violence accompanying the offence”:
“Such arguments rest on a serious misconception about the nature of sexual abuse of a child. The crime of incest involves sexual penetration of a child which is, by its very nature, an act of violence. The Sentencing Advisory Council made this point strongly in its recent report on Sentencing of Offenders for Sexual Penetration with a Child under 12:
[I]t is concerning that the courts do not sufficiently recognise, or articulate, the inherent violence involved in the sexual penetration of a young child, regardless of whether such acts are accompanied by additional non-sexual violence.
...
This characterisation of ‘violence’ as encompassing only non-sexual violence has the consequence of diminishing the equally destructive and terrifying violence inherent in sexual offending against children, which more often takes the form of physical or emotional coercion, or the simple act of being overpowered. It can also have the effect of rendering invisible and irrelevant the extreme physical pain inherent in the act of an adult forcibly penetrating the genitals and anus of a child. Many of the sexual penetration cases simply did not mention, in the relevant description of the offending the terror and/or extreme physical pain that objectively would have been caused by the offence. The reason for this is unclear, but it has the effect of diminishing harm.
Moreover, as this Court explained in Clarkson v The Queen, the absolute prohibition on sexual activity with a child is ‘founded on a presumption of harm’. The significance of the violence and harm which such conduct entails cannot be overstated.”
97 Whilst Mr Westmore submitted you and the complainants were all part of a social scene where sexual activity between various members was common that, in my opinion, did not reduce your culpability for your offending. Particularly involving Samantha Hurst and Jessica Bennett.
98 Mr Westmore referred to the report of Ms Gina Cidoni, Psychologist, who concluded you had low ego strength, which showed you could be immature, unreliable and egocentric.
99 Mr Westmore was not relying upon the principles in R v Verdins & Ors[21], based on that report and such, in my opinion, was an appropriate concession. He did, however, rely upon your immaturity as going some way to explaining your offending behaviour involving the three complainants, and relevant to ultimate sentence. You were, however, in my opinion, aware of the illegality of your offending and put your own sexual desires above your obligations.
[21] (2007) 16 VR 269
100 I am very much aware of your age, 19 at sentence, and the observations by Ms Cidoni regarding your immaturity.
101 Mr Westmore described it was an ‘unfortunate decision’ by you to have sexual intercourse with Jessica Bennett the night after being arrested and interviewed for the offending against Samantha Hurst, and urged that was because you did not comprehend the seriousness of the situation. I have difficulty accepting that given in the circumstances/chronology of your offending.
102 Ms Cidoni said you now understood the wrongfulness of your conduct, had some insight and had expressed remorse. Ms Cidoni assessed you as being a low risk of sexual recidivism.
103 Turning to the related summary offences, Mr Westmore again relied upon your age and immaturity. However, in my opinion, you knew full well following being interviewed you were not to communicate, and chose to ignore that. I do not regard that as simply referrable to age and immaturity. Yours was a flagrant breach.
104 In relation to the charge of harassing a witness, it was urged that I view that offending in the context of you becoming involved with police for the first time. I do not accept that this offending occurred simply as a result of the stress of being involved with police when the circumstances surrounding that offending are considered.
105 Mr Westmore referred to your lack of prior criminal history, of which I am aware. You had a stable and supportive family, and your plan was to live with your parents upon your eventual release.
106 You attended Secondary College, leaving after Year 11 and prior to your incarceration were undergoing a plumbing apprenticeship.
107 In that regard there was a reference from Hayden Brown, dated 12 April 2018 before me. He had known you since November 2016, having employed you as an apprentice in his business. He said you worked well with other team members, were reliable and had a keen desire to become a licenced roof plumber. He described you as having a bright future and a lot of potential. He was willing to have you return to the apprenticeship.
108 Returning to Ms Cidoni's report, it was apparent from her report that apart from anxiety and mild depressive symptoms referrable to being in custody, you did not have any mental health or substance abuse issues.
109 You had been incarcerated since 18 October 2017. Mr Westmore submitted this was your first time in custody, and it had been a salutary lesson to you. I note you have to date been in protection. Beyond sentence your classification is not known (R v Males[22]). I am aware of your age and potential vulnerability in custody. I have also taken into account your protection status as at sentence.
[22] [2007] VSCA 302
110 Mr Westmore placed reliance on your age, 17 and 18 at the time of your offending, 19 years of age at sentence.
111 I am aware of R v Mills[23], and of the importance of rehabilitation when sentencing a young offender. However, the principles in Mills are not of automatic or usual application. Each case depends on the circumstances, including the circumstances of the offending as well as the offender (see DPP v Lawrence[24]).
[23] (1998) 4 VR 235
[24] [2004] VSCA 24
112 In R v Tran[25] at 462, Justice of Appeal Callaway said:
“The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not its only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true that, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence, but the word I have italicised is there to remind us that there are cases where just punishment, general deterrence or other sentencing objectives are at least equally important.”
[25] (2002) 4 VR 457
113 Mr Westmore, relying upon the report of Ms Cidoni, submitted that continued imprisonment at this stage will only serve to place you on a negative trajectory in view of your immaturity and impressionability.
114 I accept, and take into account that any term of imprisonment will be more likely to be harsher upon you given your immaturity and vulnerability.
115 Turning to your prospects of rehabilitation, it was submitted they were very good, based on Ms Cidoni’s assessment of your low risk of recidivism, your lack of prior history, your family support, that you have a possibility of continuing with your apprenticeship, and your lack of mental health or substance abuse issues.
116 I have at best guarded optimism regarding your rehabilitation prospects, given your awareness of your offending behaviour at the time of it, and your callous disregard for the victims. A lot will depend on your eventual successful participation in relevant programs and counselling, for me to be comforted in that regard.
117 Mr Westmore submitted your offending fell towards the lower end of offences of sexual penetration of a child under 16. I disagree, when one takes into account all the circumstances of your offending.
118 Turning to sentencing disposition, Mr Westmore submitted the appropriate disposition would be to combine a term of imprisonment with a community correction order, either days served to date with an order or a further period in custody with a community correction order.
119 I am mindful of Boulton & Ors v R[26] and the subsequent pronouncements of the Court of Appeal relevant to Community Correction Orders. A Community Correction Order has both a punitive and rehabilitative aspect to it and in Boulton, the Court was urged to ‘rethink the conventional wisdom about whether prison is really the only option’.
[26](2014) 46 VR 308
120 Community correction orders have been referred to and addressed in a number of cases since, including DPP v Maxfield[27], Alam v The Queen[28], Marocchini v The Queen[29] and Hutchison v The Queen[30] of course being mindful of the different offending in those cases from yours (and recently Gul v The Queen[31]).
[27] [2015] VSCA 95
[28] [2015] VSCA 48
[29] [2015] VSCA 29
[30] [2015] VSCA 115
[31] [2016] VSCA 82
121 I did not, however, understand Boulton to remove the requirement that a sentencing judge must take into account all of s.5 Sentencing Act 1991, nor did I understand Boulton to mean that sentencing principles stated by the Court of Appeal and other Courts, relevant to this type of offending, now amounted to nought. Nor did I understand Boulton’s decision to remove the instinctive synthesis when sentencing.
122 I also did not understand Boulton to remove the need for me to be mindful of the maximum penalties applicable to each of the charges. Further, I note Priest JA observed in Hutchison that:
“It should not be thought that Boulton offers a 'get out of gaol free’ card, in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed.” [17]
123 In my opinion, to impose either disposition urged by Mr Westmore would not adequately or appropriately reflect all relevant sentencing considerations in your case and would result in a manifestly inadequate sentence.
124 Mr Westmore’s third submission, without abandoning his first and second submissions, was that if I considered a further term of detention was necessary, I should consider the imposition of a Youth Justice Centre disposition, urging against further imprisonment. I shall return to this urged disposition shortly.
125 Turning to your background and history. Much of this was contained in the written submission of your counsel. You reported no use of illicit substances. You had never visited a psychologist or a psychiatrist. After leaving school, you did an apprenticeship at Federation University, and prior to that, you were working part-time at Woolworths.
126 There were three references before me. The first was from your parents, Peter and Leanne Best, dated 21 May 2018. They confirmed that you were living at home with them and your brother, and they would continue to support you. In discussions with them, you said you were extremely sorry for your offending. That you were aware you had to change your circle of friends and focus on your future.
127 There was also a reference from Ryan Best, your older brother. He said you were remorseful and sorry for your ‘mistakes’, and you regretted your actions.
128 In order to be able to fully consider all appropriate sentencing dispositions, at the time of your plea hearing I arranged for you to be assessed for your suitability or otherwise for Youth Justice Centre detention.
129 At that time I understood (incorrectly as is now apparent) such could be of four years duration. The transcript of a mention of this matter on 1 June 2018 will reveal how that understanding occurred. Further research by me prior to sentencing in another matter disclosed the maximum was three years Youth Justice Centre detention given the dates of your offending before me.
130 I made it clear at your plea hearing a Youth Justice disposition may not be the sentence ultimately imposed.
131 As discussed with counsel on 1 June 2018, it was my opinion that detention of up to three years would not adequately reflect all sentencing considerations in your case, and as such I did not require such an assessment.
132 Turning to the prosecution submission on sentence, Mr Sharpley submitted the offences before the Court were very serious, in particular Charge 2, and that a significant term of imprisonment was the only appropriate disposition, although given your age, the prosecution conceded such could be served by way of a youth justice centre disposition if I considered such to be appropriate.
133 Mr Sharpley submitted that a Community Correction Order, either with time served to date or with additional time, would not be within the range of appropriate dispositions, and would rather, as I interpret that, result in a manifestly inadequate sentence.
134 I turn to Charge 2 ‘course of conduct’ charges. Such charges have been considered recently in cases including McCray v R[32]. Allowing of course for the different charge before the Court in that case, the Court referred to a course of conduct charge as defined in clause 4A(1) of Schedule 1 to the Criminal Procedure Act 2009 as a “charge for a relevant offence that involves more than once incident of the offence.”
[32] [2017] VSCA 340
135 The Court referred to the Sentencing Act 1991 having a special provision for sentencing of an offender for a ‘course of conduct’ charge, specifically s5(2F). That section relevantly provides that:
“(2F)In sentencing an offender for the incidents of the commission of an offence included in a course of conduct charge … a court—
(a) must impose a sentence that reflects the totality of the offending that constitutes the course of conduct; and
(b) must not impose a sentence that exceeds the maximum penalty prescribed for the offence if charged as a single offence.”
See also Poursanidis v R[33].
[33] [2016] VSCA 164
136 As well as matters personal to you, including your prospects of rehabilitation as I find them to be, I must also take into account general deterrence when sentencing you (except relevant to Charge 1). General deterrence is of considerable importance relevant to your offending in Charges 2 and 3.
137 I must also take into account the need for specific deterrence when sentencing you, and in that regard I note your offending involved three complainants and in the case of Samantha Hurst over a significant period of time.
138 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. I am comforted to a degree by Ms Cidoni’s assessment of your further risk of sexual offending, although you are to further address your offending by, in my opinion, the necessary counselling/treatment you require.
139 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
140 Having considered all relevant sentencing matters in your case, I have determined the only appropriate sentence is that which involves a term of imprisonment with a non-parole period.
141 When sentencing you I take into account the principles of totality and proportionality.
142 I sentence you as follows.
Turning to indictment C1711513.
143 On Charge 1, you are convicted and sentenced to 15 months’ imprisonment.
144 On Charge 2, you are convicted and sentenced to 3 years and 6 months’ imprisonment.
145 On Charge 3, you are convicted and sentenced to 2 years’ imprisonment.
On CR-18-00518
146 On Summary Charge 4, breach bail, you are convicted and sentenced to 14 days’ imprisonment.
On CR-18-00517
147 On Summary Charge 2, harass a witness, you are convicted and sentenced to 3 months’ imprisonment.
148 On Summary Charge 4, breach bail, you are convicted and sentenced to 1 month imprisonment.
149 On Summary Charge 6, contravene a family violence intervention order, you are convicted and sentenced to 2 months’ imprisonment.
150 I order the following by way of cumulation and concurrency.
151 Charge 2 on the indictment is the base sentence.
152 I direct that 7 months of Charge 1 be served cumulatively upon Charge 2.
153 I direct that 12 months of Charge 3 be served cumulatively upon Charge 2.
154 On CR-18-00518, I direct 7 days of summary Charge 4 be served cumulatively upon Charge 2.
155 On CR-18-00517, I direct that 1 month of summary Charge 2 be served cumulatively upon Charge 2.
156 I direct that 14 days of summary Charge 4 be served cumulatively upon Charge 2.
157 I direct that 1 month of summary Charge 6 be served cumulatively upon Charge 2.
158 The orders for cumulation are upon the base sentence and upon each other.
159 That results in a total effective sentence of 5 years, 3 months and 21 days’ imprisonment and I direct you serve a period of 3 years before you are eligible for parole.
160 In imposing a non parole period of 3 years, I have imposed a short non-parole period. In determining the length of the non parole period I have taken into account all relevant factors including those referred to by Callaway JA in R v VZ[34].
[34] (1998) 7 VR 693 [15]
161 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 243 days in custody (up to and including yesterday, 13 June 2018) by way of pre-sentence detention and I direct that be entered into the records of the court.
162 Pursuant to s6AAA Sentencing Act 1991, had you been found guilty of these offences following jury verdict I would have sentenced you to a term of imprisonment of 9 years and with a non-parole period of 6 years.
163 The prosecution made application for a forfeiture order. That was not opposed by counsel on your behalf and I make the order in the terms sought.
164 For completeness, an order pursuant to s464ZF Crimes Act 1958 was not sought.
165 Pursuant to the Serious Sex Offenders Registration Act 2004, Charge 1 is a non-class offence as you were a child when you committed the offence. However, pursuant to s11(2) of the Act the court may still order registration under the Act. Charges 2 and 3 are Class 1 offences as you were an adult when you committed those, pursuant to s6(1) and 34(1)(c)(i) of the Act, registration is mandatory and the length of the reporting period is life. Given the mandatory registration relevant to Charges 2 and 3 both being those Class 1 offences, I do not make any order in relation to the Act relevant to Charge 1.
166 HER HONOUR: Any other matters, now let's check it. Maths, how did you go with the maths? I'm not asking if you agree with them or not, I'm just asking did you get them all down?
167 MR CASEY: It's all correct Your Honour and 243 is the correct - - -
168 MR WESTMORE: I agree.
169 HER HONOUR: Yes, excellent, thank you. All right, I don't think there are any other orders to be made, no. Now, Ms Jackson is going to approach the dock to sign those documents that relate to the Sex Offenders Registration Act. All you are being asked to sign for Mr Best is acknowledgement of the paperwork. You are not being asked if you want to be on the order or not, I've made that order. But, you're simply being asked to acknowledge the paperwork. If you don't want to sign that's fine. But, she has to ask you to sign for that paperwork.
170 MR WESTMORE: Yes, Your Honour.
171 HER HONOUR: Thank you, Mr Best, you'll need to leave, so thank you very much.
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