Director of Public Prosecutions v Castles
[2012] VCC 1081
•3 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-02388
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MITCHELL CASTLES |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 July 2012 | |
DATE OF SENTENCE: | 3 August 2012 | |
CASE MAY BE CITED AS: | DPP v. Castles | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1081 | |
REASONS FOR SENTENCE
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Catchwords: one charge of sexual penetration of child under 16; boyfriend/girlfriend relationship; aged 18 and 13 respectively; accused diagnosed with high functioning autistic condition; good prospects for rehabilitation; stable life and employment; CCO.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Bhai | OPP |
| For the Accused | Ms T Hartnett | Galbally O’Bryan |
HER HONOUR:
1 Mitchell Castles, you have pleaded guilty to one charge, a representative charge, of sexual penetration of a child under the age of 16.
2 The charge arose from a relationship you had with a 13-year-old girl, B, between September and November 2011. You met her through her previous boyfriend and you commenced a boyfriend/girlfriend relationship with her. You were aged 18.
3 Her parents allowed you to stay overnight in their house at weekends, but you had to sleep in her brother's bedroom. You and B would stay up watching TV until after her parents went to bed and on perhaps 10 occasions you had penile/vaginal sex with her and engaged in other sexual activity.
4 You knew that it was wrong to have sex with her because she was only 13 and was therefore under age and you understood that this was why you were not allowed to sleep in the same room at her parent's house and why you were not left alone in the house at any time. Your landlady knew you were doing this and warned you not to, even telling you that the consequences would be prison if you ignored this. Eventually her mother discovered you on a bed together and told you to leave the house and the matter was reported to the police.
5 You were interviewed by the police and charged with a number of offences which, following discussions, were reduced to one representative charge.
6 You pleaded guilty at the earliest opportunity, at the committal mention, and you are entitled to a discount on your sentence for that. By pleading guilty you have avoided the need for a trial and for the victim and other witnesses to have to give evidence, you have avoided that, and in a case such as this that is a very important consideration.
7 In addition to that the case has been expedited in its progress through the criminal justice system and I also accept it as evidence of your remorse.
8 In your record of interview with the police you claimed that B was a willing participate and indeed there are text messages that lend support to this, but you understood that she was too young to consent. She gave a different version of events in her statement indicating that you had placed her under pressure to have sex with you in that you urged her to take part and she feared you would reject her and consider her to be childish if she did not agree.
9 You said in the interview that you loved B and that you thought it was a normal relationship. It seems that you rationalised the behaviour because you believed her parents knew of your intimacy or at least its likelihood. That ignores the fact that you knew she was five years younger than you and was therefore at an impressionable and vulnerable age.
10 She has provided a victim impact statement, as have both her parents and they indicate that they all suffered from the effects of what happened. B feels sorry for it and wishes she could start again. She has been bullied and feels isolated from her family. Her parents describe the tensions which occurred within the family contributing to marital breakdown and a sense of having failed to protect their daughter.
11 The legislature has seen fit to provide for a maximum penalty of 10 years imprisonment for this serious offence in recognition of the need to protect children and young people for sexual activity when they are too young to consent and too young to adopt the responsibilities that go with it.
12 The community expects that those who offend against the law in this way will be punished accordingly. That is not to say that there is no room for leniency in appropriate cases and it has been submitted on your behalf that this is such a case where leniency is warranted.
13 The prosecution submission is that I should impose a sentence of detention upon you. Your counsel Ms Hartnett, who appeared on your behalf on the plea, has urged me to avoid that and to consider whether a Community Corrections Order would be appropriate.
14 Ms Hartnett referred me to material supporting her submission that you are a troubled youth who would be vulnerable to spending time in custody. I turn now to a consideration of those and other matters relating to your background.
15 You are aged 19, one of four sons in an intact and supporting family. You have been assessed as being of above average intelligence, but as a child you were diagnosed with Attention Deficit Disorder and were prescribed dexamphetamine from the age of five until 10. Your mother has described your behaviour as difficult from the age of two and uncontrollable at the age of five.
16 You also suffer from Type 1 Diabetes and you must administer medication by injection twice a day. Unfortunately you began using marijuana at the age of 13 and behaviour problems resulted in your leaving home at the age of 14 and sleeping on friends’ couches. You left school at the beginning of Year 11 in 2009 and worked in various jobs. You graduated to the use of multiple types of drugs and continued with a transient lifestyle resorting to stealing from your parents to support your drug habit.
17 You were living away from home during the relationship that led to this charge. You returned to your family home in February this year and you have recently begun work for a heating company in a casual part-time position with the possibility that the hours will be extended. Apparently you enjoy this job very much and your employer, in a letter to the court, described you as hardworking and conscientious. He said your attitude towards the company and your fellow workers has been outstanding.
18 While spending the years of your adolescence away from home you got into considerable trouble breaking the law with driving and dishonesty offences and were placed on probation in 2010. You breached that and along with other matters were placed on a Community Based Order in June 2011. This offence has breached that order and the Corrections Department has yet to consider whether breach proceedings will be taken as they are awaiting the outcome of this matter. You still have one outstanding matter, a charge of theft, to be mentioned later this month.
19 Your legal representatives referred you to Dr Cunningham for a psychological assessment and he diagnosed, for the first time, a condition known as High‑Functioning Autism Spectrum Disorder or HFASD. Dr Cunningham said it produces impairments in people that are most observable in social interaction and abstract thinking and that in such people these skills do not develop beyond childhood or early teenage level. He noted some manifestations of these impairments in your presentation and identified in particular a failure to develop appropriate peer relationships and a lack of social and emotional reciprocity.
20 He also noted that there were previous diagnoses of disorders relating to substance abuse but not currently, and indeed you were referred to and attended a drug and alcohol program in 2011 following being charged with other offences at that time and before the relationship with B started.
21 It seems that these attendances brought about some insight into your drug abuse and as a result you voluntarily attended the Windana Residential Program for detoxification for young people on four separate occasions, each time completing the 15 day program. Apparently you relapsed into further drug use after each program, but a report written after your last admission there in February this year states that your return to the family home and the prospect of employment were encouraging.
22 Dr Cunningham concluded that there is a low risk of sexual reoffending and of reoffending in general and you come within what he described as the moderate risks needs range. He said your stable life, living with your family and your employment, as well as demonstrated motivation to engage with treatment are all protective factors and that in a prison environment you may be susceptible to negative influences.
23 That view is shared by Mr Riordon, the Senior Court Advice Officer, who assessed you as to your suitability for a Youth Justice Order. He concluded that you were indeed suitable, but that in prison or youth detention you might revert to old ways of behaviour in an attempt to assimilate.
24 You were also assessed as suitable for a Community Corrections Order and that would require you to perform unpaid community work by way of punishment and by way of making some recompense to the community. It would require you to be assessed and, if necessary, treated for drug and alcohol abuse and you would be subject to supervision.
25 A very important part of your obligations would also be an assessment as to the need for any mental health treatment along the lines of individual counselling. According to Dr Cunningham this might be possible through the Aspergers Syndrome Support Network.
26 Under such a community order you would also be assessed as to the need for participating in a Sex Offender Program and indeed this was recommended by the writer of the report I received. The availability of a program suitable to your needs would be a matter for the Corrections officers. I understand that although a program specifically for young, male sex offenders exists, known as MAPPS, it is not available through Corrections, but more general counselling might be appropriate in your case.
27 This is a very serious charge for the reasons I have explained and a sentence of imprisonment or detention is very often imposed. However I have concluded that the circumstances of this case allow for leniency. Although your recovery from drug abuse is perhaps in its early stages you have demonstrated good prospects for rehabilitation in other ways as well and because you are a young man that is a matter of importance.
28 Accordingly I shall impose a Community Corrections Order which will begin today and will last for two years. You will have to perform 80 hours of unpaid community work over six months and submit to the testing and assessments I have already described. You must report to the Corrections Office in Frankston by 4 p.m. on 7 August. In a moment I will ask you to sign the form agreeing to the conditions.
29 If you had not pleaded guilty to this charge I would have sentenced you to nine months detention in a Youth Justice Centre.
30 You will be required under the Sex Offenders Registration Act to report to the police your details each year for 15 years, that is a mandatory requirement and you will be given a form regarding that shortly.
31 Finally the prosecution has applied for an order under s.464ZF of the Crimes Act for a forensic sample of saliva to be obtained. I note that is not opposed through your counsel and I make that order. I need to inform you that the police do have the power to use reasonable force to obtain that sample, but I trust that will not be necessary.
32 Now, are there any other matters that I have neglected, Ms Bhai, first of all?
33 MS BHAI: There are no matters that Your Honour has neglected. There was just one matter, Your Honour, in your sentence. Your Honour said there was "10 occasions" when the offender had penile/vaginal intercourse with the complainant; it should be six, Your Honour.
34 HER HONOUR: Thank you for pointing that out. I'll amend the reasons in that regard. Ms Hartnett, anything else?
35 MS HARTNETT: No, thank you, Your Honour.
36 HER HONOUR: Thank you. I think everything is completed now.
37 MS BHAI: Thank you, Your Honour.
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