Director of Public Prosecutions v Bird (a pseudonym)

[2021] VCC 1534

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW BIRD (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	5 October 2021
DATE OF SENTENCE:	11 October 2021
CASE MAY BE CITED AS:	DPP v Bird (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1534

REASONS FOR SENTENCE

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Subject:Plea – sentencing

Catchwords:            Sexual penetration - child under 16

Legislation Cited:     Sentencing Act 1991 (Vic)

Cases Cited:

Sentence:12 months’ CCO without conviction

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APPEARANCES:	Counsel	Solicitors
For the DPP at hearing For the DPP at sentence	Mr D. Brown Ms K. Westlake	Office of Public Prosecutions
For the Accused at hearing For the Accused at sentence	Mr D. Cronin Mr M. McLellan	Emma Turnbull Lawyers

HIS HONOUR:

1Matthew Bird[1], you have pleaded guilty to two charges of sexual penetration of a child under the age of 16 years.  This offence carries a maximum sentence of imprisonment for ten years.

[1] A pseudonym.

2The offences occurred within a period of three or four weeks in April 2010, either side of your 16th birthday.  You were born in April 1994 and are therefore
27 years of age now.

3The prosecution relied on the contents of a document titled 'Summary of Agreed Facts for Sentencing Indication Hearing' which was treated as an outline of the prosecution case on the plea hearing.  Your counsel indicated that the facts set out in that document were indeed agreed facts.

4The matter had been initially listed before me as a sentence indication hearing, but because there were technical reasons why it could not proceed as such and because the prosecution indicated that it did not submit that an immediate custodial sentence was required, I gave an informal indication that I would not impose such a sentence.  The matter was then listed as a plea to the indictment before the court.

5The facts and circumstances of your offending conduct can be summarised from the document provided by the Crown as follows.

6At the time of the offending you resided in a rural town and attended the local school.  You were enrolled in Year 11.

7The complainant was born in June 1997 and was aged 12 at the time of the offending.  She resided in the same town and also attended a local school.  She was enrolled in Year 8.  The complainant and you had mutual friends growing up and you both attended impromptu camping trips at a well-known camping spot in the area along with your friends.

8On 1 April 2010 between 5 pm and 9 pm the complainant and a female friend were at a church group sleepover.  While at the sleepover her friend had a phone conversation with a young male friend who invited her and the complainant to a party at the camping spot.  At approximately 9 pm the complainant and her female friend were collected by her friend's mother and driven to the bluestone undercover camping area there.

9There were about four young males present with you at the camping area.  The complainant and her female friend were told the party was for your 16th birthday.  Throughout the night the complainant and her friend were encouraged to drink a large amount of alcohol despite the complainant saying she had never drunk before.  The boys kept telling the girls, 'You can drink more than that.'  The complainant estimates she consumed about an entire two-litre bag of cask wine. 

10Conversation turned to the ages of everyone present.  The complainant said she was 12 and her friend said she was 13.  You and one of your male companions discussed between you how the complainant was the youngest person at the party and you were the oldest.  At approximately 11.30 pm the complainant was drunk and asked for water.  You told the complainant you would take her to a tap.  The complainant stumbled over towards the tap, which was approximately 10 metres away.  As the complainant was nearing the tap you grabbed her by the arm and said, 'Let's go for a walk.'

11You led the complainant across a dirt road into some bushes which were about 30 metres from where the group was sitting.  You kissed the complainant and she pushed you away.  You grabbed the complainant around her waist and pulled her in to kiss you but the complainant put both her hands out and pushed you away.  The complainant said, 'I don't know you.'

12You repeatedly grabbed the complainant on her chest and buttocks and she said, 'Stop, I'm a virgin.'  Shortly after this the complainant describes passing out.  She then woke up on the ground without her pants on.  She was lying on her back and you were on top of her, penetrating her vagina with your penis.  After approximately 30 seconds you ejaculated, pulled up your pants and started laughing, saying 'You're not a virgin anymore.'

13You told the complainant not to tell anyone and then walked back toward the group.  According to the complainant she was confused, tired and dizzy.  She was in shock.  She got up and ran across the road with her pants and underwear still around her ankles and called out her female friend's name.

14The complainant's friend became very upset and was yelling.  The complainant tried to calm her down.  They then walked back to the rest of the group.  By the time they sat down the group was joking about how the oldest person had slept with the youngest person.  You said you did not want your sex life getting around town and it needed to stay within the group.

15The following morning after the complainant and her female friend had been picked up by her friend's mother, the complainant's friend asked the complainant what happened between her and you.  The complainant told her she was in and out of consciousness and that she wanted to tell the police.  Her friend said that she did not think that was a good idea because they had been drinking.  The complainant recalls she was bullied afterwards as one of the young males at the party had told people at their school.  She said she was called a slut and asked when it was their turn.

16The second offence occurred approximately three or four weeks later.  The complainant and the same female friend were again invited to camp at the same spot.  The complainant says she agreed to attend due to her low self-esteem and not having many friends.  On this occasion the same group of boys were present, along with a boy the complainant knew and was comfortable with, and another boy.  The complainant and her friend were again encouraged to drink alcohol.  The complainant and the male she knew decided to walk to the roadhouse which was approximately a kilometre from the campsite.

17You insisted on walking with them.  While you were walking to the roadhouse you told the complainant that you had something to show her.  You pulled the complainant into some nearby bushes.  You kissed the complainant and grabbed her on the buttocks.  The complainant stood with her arms down by her side and turned her face away.  You said 'You don't like that, do you?'  The complainant called out to the male friend with whom she had been walking and said 'We're coming now' and you let her go.

18When you all arrived back at the campsite, the complainant sat next to the same male friend.  You gave him a lot of alcohol and he passed out.  It was very cold.  You offered the complainant to share your sleeping bag.  She accepted.  The sleeping bag was unzipped and you and the complainant both lay underneath.  You took the complainant's hand and put it on your penis and moved it around.  You stood up and grabbed the sleeping bag.  You led the complainant across the dirt road into some bushes.  You laid the sleeping bag on the ground and told the complainant to lay down, which she did.

19You removed the complainant's pants and then your own.  You then got on top of the complainant and penetrated her vagina with your penis.  After a few minutes you ejaculated and you then pulled up your pants and threw the complainant's pants at her before you walked back to the group.  The complainant recalls that in the years following there had been multiple instances where she saw you and you referred to her as a slut. 

20I stress again that this summary is taken from a document that was described as agreed facts and which your counsel indicated during the plea hearing were agreed facts.

21The matter was not reported to the police or otherwise disclosed to anyone in authority until several years later.  On 24 December 2017 the complainant was at a pub with some friends.  She disclosed the offending to a friend who had bullied her when she was younger after hearing about the offending I have described.  The complainant told her mother in a phone call the next day.

22In January 2018 the complainant disclosed the offending to a psychologist.  In May 2018 she made a formal statement to a member of the Dandenong Special Sexual Offences Squad at the Dandenong Police Station.

23On 28 March 2019 you participated in a recorded interview at the Stawell Police Station.  During the interview you initially told police a pack of lies and denied having any sexual contact with the complainant.  However once you were informed by police that witness statements had been obtained that confirmed that alcohol was consumed and you were seen walking into the bushes with the complainant, you said as follows:

·     you would be honest that there was drinking;

·     you slept with the complainant;

·     sexual activity was consensual;

·     the complainant told you she was 16 and never said she was a virgin;

·     you did not know the complainant's age and believed that she said she was older than she was;

·     you apologised for lying as you were nervous;

·     you knew the complainant was younger than you but did not know she was 12 years old.

24I pause to observe that even that version was a gloss on the truth, as it is plain from the agreed facts that you had discussed the complainant's age on 1 April 2010 shortly prior to the commission of the first offence, and were therefore aware that she was indeed 12 years of age.

25The complainant has provided a victim impact statement which she read aloud to the court.  It is plain she has suffered significant psychological and social harm as a result of your offending and the taunts and bullying occasioned by the offending becoming known in her local community.  As I note from the agreed facts, you were a substantial contributor to that arrogant and spiteful conduct towards her.  It is a disgraceful aspect of your conduct towards the victim and it is an aggravating factor of the offending.  You should be ashamed of it.

26I now turn to matters personal to you. 

27You have no prior or subsequent criminal history.  Your counsel tendered a written outline of submissions, a report dated 31 May 2021 from Carla Lechner, psychologist, a letter from the Ballarat Psychological Service dated 30 September 2021 and written character references, including one from your estranged partner of seven years who is the mother of your young daughter.  I understand you are hoping to reconcile after this matter is finalised.  She describes you as a very responsible and reliable person and a good father.  I note that the two of you are still living under the same roof with your young daughter.

28Ms Lechner provides a useful outline of your personal history, so I do not need to repeat it in these reasons for sentence.  Suffice to say that you continue to have strong family supports.  You left school in Year 11 and you have been in work ever since.  You are currently employed in gold mining, having obtained your tickets for earthmoving work.  It seems that you have a strong work ethic.

29You have a long history of depression apparently linked to being bullied at school.  Ms Lechner opines that you are currently suffering from a major depressive disorder and an adjustment disorder with anxiety.  The latter condition is apparently reactive to this matter hanging over your head for the last two and a half years.  You have no substance abuse issues.  I regard your prospects of rehabilitation as good to excellent.  I do not believe you will offend again. 

30I note that had you been dealt with for these offences soon after April 2010 you would have been sentenced in the Children's Court.  It is highly unlikely that, if you had been sentenced in that Court, you would have received a custodial sentence.

31I make no criticism of the complainant for her delay in reporting the offences to police.  It is well recognised that there are many factors which often lead victims of sexual offending not to report the crimes against them, in this case no doubt to some extent resulting from the unpleasant innuendo and remarks of her so-called friends and peers during that same period, as well as yourself.

32It is important that young people be protected from offences of this kind.  General deterrence is usually an important sentencing consideration.  Had you been over 18 years at the time of the offending it is probable that your conduct would have attracted a prison sentence.

33However, the passage of time has enabled you to mature and demonstrate that you have substantially rehabilitated yourself.  I note that you have been obtaining psychological treatment since April of this year.  You have also pleaded guilty, saved your victim the trauma of testifying at a trial and have done so in COVID times, for which you are entitled to extra credit.

34I am therefore persuaded that, in the overall circumstances of this case, a sentence of imprisonment is unnecessary to satisfy the range of competing sentencing objectives.  You must be punished, and I propose to achieve that through a community correction order.

35What has caused me the most difficulty is the question of whether I should record a conviction or make such an order without conviction.  On balance I have concluded that the nature of the offences, your character and past history, and the impact of recording a conviction on your economic and social wellbeing, and your future employment prospects, favour not recording a conviction.

36It is a close call because, as I have indicated, there are aspects of your offending that are particularly unsavoury at the very least, but I do note that the age gap between you - her age of 12 years and yours of 15-16 years - is relatively close and therefore in the circumstances I am persuaded that a non-conviction order is open to me and appropriate in all the circumstances.

37The community correction order I propose to make is for a period of 12 months which will commence today and end on 10 October 2022.  The terms of the order require you to attend at the Ballarat Community Correctional Services at 206 Mair Street, Ballarat, within two clear working days after the commencement of this order.

38The mandatory terms that apply to all community correction orders are that:

·you must not commit another offence for which you could be imprisoned during the time the order is in force;

·you must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011;

·you must report to and receive visits from the Secretary or the Secretary's delegate;

·you must report to the Community Corrections Centre within two clear working days of the order starting;

·you must let a community corrections officer know within two clear working days of you changing your address or job;

·you must not leave Victoria without first getting permission to do so from the Secretary or the Secretary's delegate;

·you must obey all lawful instructions from and directions of the Secretary or the Secretary's delegate.

39The program condition that applies to the order in addition to the mandatory terms I have just read out is that you undertake to perform 60 hours of unpaid community work over the period of the 12 months of the order as directed by the regional manager.

40If you fail to comply with this order the Secretary of the Department of Justice or the Secretary's delegate may give you a direction to perform additional hours of unpaid community work in accordance with s83AU of the Sentencing Act 1991.

41Would you just unmute your sound please, Mr Bird?  Mr Bird, do you understand the order and the conditions of the order and do you consent to the making of the order that I have just read out to you?

42OFFENDER:  Yes, I do, Your Honour.

43HIS HONOUR:  Thank you.  It will be noted on the order, in the place where you would normally sign, that agreement and consent were obtained by audio visual link.  Mr Bird, that order is now in place, therefore I formally order as follows.

44For the two offences of sexual penetration of a child under the age of 16 to which you have pleaded guilty, without conviction I make the order that I have just described to you.  Are there any other matters from either party?

45MS WESTLAKE:  No, Your Honour.

46MR McLELLAN:  No, Your Honour, as Your Honour pleases.

47HIS HONOUR:  Thank you.

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