Director of Public Prosecutions v Clark
[2021] VCC 2139
•13 December 2021
| IN THE COUNTY COURT OF VICTORIA AT Mildura CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01495
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL CLARK |
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JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 13 December 2021 | |
DATE OF SENTENCE: | 13 December 2021 | |
CASE MAY BE CITED AS: | DPP v CLARK | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2139 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Sexual Penetration with a child under 16 – Contravention of order intending to cause harm or fear for safety – Sex Offender Registration Period
Legislation Cited: Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)
Cases Cited:Byast v The Queen [2021] VSCA 344; Bugmy v The Queen (2013) 249 CLR 571; Clarkson v The Queen (2011) 32 VR 361, DPP v Palmer (a pseudonym) [2020] VCC 300; DPP v Morey (a pseudonym) [2020] VCC 320; DPP v Spottiswood [2021] VSCA 146; DPP v Amaral [2020] VSCA 290; DPP v Jenkins (a pseudonym) [2019] VCC 1504; Jenkins v The Queen [2021] VSCA 65; DPP v Pennington (a pseudonym) [2019] VCC 1700; Cooke v The Queen [2021] VSCA 70
Sentence: Total effective sentence of 4 years and 3 months imprisonment with a non-parole period of 3 years.
Section 6AAA declaration: Total effective sentence of 6 years imprisonment with a non-parole period of 4 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. O’Doherty | Office of Public Prosecutions |
| For the Accused | Mr T. Sullivan | Martin Middleton Oates Lawyers |
HER HONOUR:
1Michael Clark, you have pleaded guilty to a charge of sexual penetration of a child under 16, and a charge of contravention of a family violence intervention order intending to cause harm of fear for safety. I am now going to give my reasons for the sentences that I will impose.
2Mr Clark, these reasons are going to be long and quite complicated. I am aware that taking in information in this way is difficult for you, but I have to give detailed reasons. One I have finished my remarks I will tell you what the sentences are, and I expect that Mr Sullivan will then have the time to explain to you what my reasoning was.
3Both charges relate to conduct committed by you against a child, whom I will call Sarah.[1]
[1]A pseudonym
Charge 1
4When you were 20 years old you met Sarah via Tinder. On that app she represented herself as being 18 years old. After some online chat, in which she told you she was 17 years old, you arranged that she would stay at your address overnight, from 2 to 3 May 2019.
5The day after you first had contact with her over Tinder you collected Sarah from her home and drove her to your home in Mildura. On that night you and she had sexual intercourse. You sent her a text thanking her, and she raised the question of whether you and she should try to have a child together.
6On 3 May Sarah asked you to call her mother to check her emails for her. In the course of the conversation with Sarah’s mother you learned, for the first time, that Sarah was only 15. After this conversation with Sarah’s mother, you confirmed with Sarah that she was only 15. Despite learning this, you continued to see Sarah, and have sexual intercourse with her.
7In May you and Sarah engaged in sexual intercourse 2 to 3 times a week, and in June you sexually penetrated her 1 or 2 times before the relationship, and sexual activity finished on 13 June 2019.
8As I noted earlier, Sarah raised with you the notion that you and she could have a child following your first meeting. Following that, she asked you again if you were “trying for a kid or not” and you replied that you were. On 15 May 2019 in a text message exchange, it appeared that you would be happy if Sarah were to become pregnant to you. Two weeks after you had commenced sexual activity Sarah discovered she was pregnant, to you. You were apparently happy about this and wanted to keep the baby.
9You, aware that Sarah was underage, told her to tell the police, if she was asked, that she was 16 years old. Your concerns were realised when, on 28 May 2019 Sarah told you that she was required to speak to the Mallee Sexual Assault unit, as someone had reported the sexual relationship between you to police.
10You said to her by message, ‘Don't say anything got it’, and later ‘You can’t have that fucking baby get it through your head I will get charged and thrown in jail for fuck sake dating you is bad enough right so stop I’ve had it I’m going to get charged’.
11On 11 June 2019, Sarah sent you a message saying ‘Do not say we are together to the cops say we broke up. Ages ago’. You replied, ‘Yeah I know gosh xxx’.
12On 13 June 2019 you told Sarah you wanted to get married to her, but she replied ‘l don’t wanna get married. I’m 15 ffs’.[2]’. Later conversation on that day shows an argument between you and Sarah.
[2]An abbreviation of ‘for fuck’s sake’
13In early 2020 the complainant gave birth to a boy, who is now in her care with the assistance of her parent with whom she still lives.
14Sarah first made a statement to police, regarding Charge 1, in June 2019. You were interviewed the same day, and made partial admissions, but you denied having sexual contact with her after the first day, and you denied that you were the father of her child.
Charge 2
15Charge 2 concerns a threat made by you in July 2020 to Sarah. In March 2020 a family violence intervention order was issued by the Court preventing you from committing family violence against Sarah. You had been served with that order on 25 March 2020.
16On 19 July 2020 you arranged for the complainant to contact you. She called you and you threatened and abused her in order to persuade her to withdraw a police statement made in relation to your brother. You threatened to provide a video to police and to the child protection agency which purportedly showed Sarah dragging her child across a floor.
Personal Circumstances
17You are now 23 years old. You were born and grew up in Mildura.
18You report that your childhood was extremely abusive and traumatic. When you were still a toddler you were placed in foster care as your mother could not look after you and your siblings. You did not ever return to live with your mother. Your father was absent from when you were young, and you have had no contact with him except for a telephone call when you were 15.
19You were placed with foster parents, who you have described as “amazing”. You grew up in their care, with access visits with your mother and siblings from when you were 6 until you were 9 years old.
20You report being sexually abused as an infant and toddler, and then between the ages of 6-9 by your step-father and uncle. This occurred whilst you were at your mother’s house on access visits. You say your older sister and brother tried to protect you, but your mother did not look after you. This was very traumatic for you. You report that you tried to report this abuse to the Mallee Sexual Assault Unit when you were 18, but the report was not taken further.
21You also report suffering a traumatic brain injury from an assault or assaults inflicted when you were young, leading the learning difficulties.
22When your foster mother realised that you were being abused during family access visits she prevented these visits continuing.
23You report that you liked primary school, but that you were not well behaved. You found reading, writing and math difficult and were diagnosed with a learning disorder. You managed to complete year 10, but found the last two years at school very difficult as your mental health was very poor and you were self-harming.
24You reported attending TAFE and getting certificates in diesel automotive, and responsible serving of alcohol. In the year and a half prior to your arrest you report that you had been working installing insulation and hanging wall paper. You appear to have no pro-social hobbies or interests.
25You have an extensive criminal history, commencing in the Children’s Court when you were 16. You have many prior matters involving breaches of court orders such as bail, family violence orders, and sentencing orders. You have prior findings of guilt for two charges of indecent act with a child under 16, for which you were sentenced in the Children’s Court when you were still only 16, and you have a prior conviction for harbouring a child who was subject to a protection order.
26You report that you found it difficult to socialise with people the same age as you and that you preferred to spend time with younger kids, as you felt you related to them better. You fathered a child before your involvement with Sarah. That child is now 4. You report that you fathered another child, whose mother died from birth related complications.[3]
[3]Compare Exhibit D2, Neuropsychological Report by Dr Loretta Evans Clinical Neurologist, dated 25 August 2021, page 3, paragraph 6
27You told Dr McConchie you were heavily drinking from around the age of 18, and report abusing methylamphetamine.[4] In comparison to that, you told Dr Evans that by the time you were 16 you were drinking large amounts of mixed spirts each day, and that when you were 17 or 18 you started abusing methylamphetamine, binging on very large amounts per day, and that you continued to do so up to the point of your arrest in January 2021. You also took cocaine but your reporting about that was inconsistent.[5] I note that the information set out in Dr Evans’ report summarising what you told hospitals when admitted sometimes varied from the information provided to both Dr McConchie and Dr Evans.
[4]Exhibit D3, Psychological Report of Dr Mirabel McConchie Clinical Psychologist, dated 29 July 2021, Page 4
[5]Exhibit D2, Neuropsychological Report by Dr Loretta Evans Clinical Neurologist, dated 25 August 2021, page 3 paragraph 8, page 4 paragraph 9
28You have had some drug counselling from the second half of 2020, but you say you say you “threw it all down the drain” and were on an ice fuelled bender prior to your arrest in January 2021. Dr Evans considered you showed some awareness and insight into your drug taking behaviour. [6] I was provided with a letter from your counsellor who reported that since October 2020 and today you have had therapeutic sessions focused on regulating your emotions and addressing your drug and alcohol issues.
[6]Exhibit D2, page 4 paragraph 10
29All in all you described a fairly chaotic life of drug taking, couch surfing, difficulties with money and associated anti-social activity.[7]
[7]Exhibit D2, page 3 paragraph 6
Mental State
30Dr McConchie, who prepared a report for your plea hearing, described your presentation as:[8]
He showed fair insight and poor judgment. His thought content was focussed on constant suicidal ideation, contradicting with living for his first son, frustration at being incarcerated, devastation and despair at his childhood and lack of secure family relationships and contrition about the current offence.
[8]Exhibit D3, Psychological Report of Dr Mirabel McConchie Clinical Psychologist, dated 29 July 2021, page 4
31You reported a diagnosis as a child of ADHD, for which you were prescribed Ritalin. You reported a long history of severe depression and anxiety, including multiple attempts at suicide and self-harm, since Year 9, and multiple admissions to mental health inpatient units, following suicide attempts. Although in the past you have been prescribed medications directed at improving your mental state you were not, at the time of assessment by Dr McConchie, taking any prescription medication.
32On the background of your history of being the victim of sexual assault, and your difficulty relating to same age peers, you reported that you used intimacy as a way of making connections.[9] Whilst you accepted that you were a willing participant in the sexual activity with Sarah you also said she had taken advantage of you and that it was both your faults. You maintained that Sarah had lied about her age and did not acknowledge to Dr McConchie that you were, after your first interaction with Sarah, well aware she was only 15.[10]
[9]Exhibit D3, page 3 final paragraph, page 4 second last paragraph
[10]Exhibit D3 pages 5-6
33Dr McConchie considered you were unlikely to re-offend by sexual offending against a child. She recommended that you be linked to support structures and courses, as well as assistance for your mental health and poor anger control.
34In view of your report regarding a traumatic brain injury, and that you are registered as having an intellectual disability,[11] a report was also obtained from a neuropsychologist, Dr Evans.
[11]Exhibit D3, Psychological Report of Dr Mirabel McConchie Clinical Psychologist, dated 29 July 2021, page 5 under heading 1
35Dr Evans reported that you told her you had been hit to the head uncountable times as a child, and that you had suffered a head injury with loss of consciousness from a motorcycle accident when you were 10.[12]
[12]Exhibit D2, Neuropsychological Report by Dr Loretta Evans Clinical Neurologist, dated 25 August 2021, paragraph 11
36Dr Evans set out in some detail your many psychiatric presentations and admissions.[13] You have presented to a number of different hospitals in distress and with injuries, often related to suicide attempts or threats to suicide. You have been admitted as a psychiatric patient on a number of occasions. Dr Evans described:
(a) Three attendances with one admission in January 2021 at Bendigo Hospital;
(b) Twenty-three attendances at Mildura Base Hospital between 13 January 2018 and 3 January 2020, for injuries and other mental health issues, for which you were admitted for on 4 occasions;
(c) In January 2019 you were admitted twice to the Royal Adelaide Hospital as a psychiatric patient, and attended once in August 2019 after having a self-harm incident.
[13]Exhibit D2, paragraphs 12 - 15
37Dr Evan’s careful summary of these attendances illustrates your unstable life and mental state, and that the histories your provided contained numerous differences.
38In assessing your mental state, Dr Evans noted the absence of medical evidence to support the history you gave to Dr McConchie of having a traumatic brain injury.
39Dr Evans noted that you had a tendency, when discussing your legal matters, to be egocentric and to put the blame for your situation on others. You expressed a desire not to return to prison, and to be a better dad and person. You were able to articulate that you needed to stay away from drugs and “idiots.”[14] Like Dr McConchie, Dr Evans reports that you maintained that whilst you know what you did was wrong you had been tricked into it.[15]
[14]Exhibit D2, Neuropsychological Report by Dr Loretta Evans Clinical Neurologist, dated 25 August 2021, paragraph 23
[15]Exhibit D2, paragraph 24
40You are able to express positive goals, such as getting a job, but had no plan for achieving your goals.[16] Dr Evans used several approaches to assessing your risk of reoffending. She considered that without appropriate intervention and your risk of reoffending was high.[17]
[16]Exhibit D2, paragraph 25-26
[17]Exhibit D2, paragraph 28-29, 53
41Dr Evans also administered a range of tests regarding your intellectual functioning. She concluded this testing with the following summary:[18]
To summarise, in the context of adequate insight and awareness, as well as impressive visuo-spatial and constructional thinking skills, most other executive functions required for problem solving were within satisfactory ranges. However, Mr Clark intermittently demonstrated impulsive tendencies as well as somewhat rigid thinking and limited self-monitoring which negatively affected thinking and performances - despite relatively intact executive functioning. Moreover, the combination of a highly self-absorbed perspective, somewhat limited reasoning skills, together with impulsive behaviour, were likely to intermittently negatively affect the ability to consistently demonstrate reasoned and informed decision making.
[18]Exhibit D2, paragraph 40
42The learning difficulties you have are linked to your exposure to trauma as a child. Dr Evans noted research that has established that chronic exposure to trauma and stress as a child negatively impacts the development of the brain, with enduring effect.[19]
[19]Exhibit D2, paragraph 45
43Dr Evans considered that the difficulties you demonstrated satisfied the diagnostic criteria of a specific learning disorder, associated with verbal and written language in particular.[20] She also considered your childhood trauma and your history of psychological distress have reduced your normal psycho-social development and led you to adopt maladaptive personally traits. You meet the diagnostic criteria of borderline personality disorder and also exhibit anti-social personality disorders traits, with borderline features dominating.[21]
[20]Exhibit D2, Neuropsychological Report by Dr Loretta Evans Clinical Neurologist, dated 25 August 2021 paragraph 43.
[21]Exhibit D2, paragraph 44
44Dr Evans considered that you do not satisfy the criteria for having an intellectual disability.
45If it is the case that you have suffered head injuries as you describe, it is the effect of them on your mental functioning which is relevant to sentencing, rather than the injuries per se. Dr Evans noted that there was no medical evidence to support you having suffered a traumatic brain injury[22] and she linked your learning and personality disorders to the traumatic events of your childhood.
[22]Exhibit D2, paragraph 16.
46Regarding the impact of your mental state upon the offending, Dr Evans considered:[23]
His cognitive limitations and underlying mood disorder potentially contributed to the commission of the offences - to a mild degree. However, Mr Clark’s offending was in the context of daily methamphetamine use (and likely alcohol consumption) until his incarceration, and as such, acute alcohol substance intoxication (and potentially heightened psychological state) are considered to have been the key contributors at the time of the offending and likely to have significantly impacted on his decision making processes.
[23]Exhibit D2, paragraph 49
Effect of Mental State
47The features of borderline and anti-social personality disorder identified by Dr Evans are important contributing factors to your daily life and thought processes, particular under circumstances of heightened distress.[24] As I have noted, Dr Evans considered that your cognitive difficulties, which are mainly associated with verbal processing, ‘potentially contributed to the commission of the offences – to a mild degree.’[25] She also noted, however, that your offending was in the context of drug and possibly alcohol, abuse.
[24]Exhibit D2, paragraph 44
[25]Exhibit D2, Neuropsychological Report by Dr Loretta Evans Clinical Neurologist, dated 25 August 2021, paragraph 49
48In a recent decision the Court of Appeal said:[26]
[T]he Verdins[4]principles rest on the notion that an impairment of mental functioning may so distort a person’s decision-making, or affect their ability to exercise appropriate self-control, that the resulting criminal conduct is — to that extent — to be regarded as involuntary. Where that is established, the sentencing court may view the offender’s moral culpability and the need for specific (and general) deterrence as reduced.
[26]Byast v The Queen [2021] VSCA 344, [5]
49The material does not persuade me, on balance of probabilities, that your mental state and personality structure reduce your moral culpability. Whilst I accept your world view is egocentric and that you crave intimacy as a form of connection, this does not mean that your personality impaired your ability to understand that you should not be having sexual intercourse with a 15 year old girl.
50Furthermore, I do not accept that this offending was initiated and persisted with due to you preferring the company of younger people. You thought Sarah was 17 when you first had sexual contact with her. You quickly learnt she was only 15, yet you maintained your contact with her, and offended against her, for more than a month.
51Your barrister also submitted that in view of your mental health conditions your prospects of rehabilitation would be enhanced by structure and certainty. He submitted that a CCO would assist this. Whilst I accept that structure would be of assistance to you in trying to improve your way of life and mental state, this is only one factor in the sentencing discretion.
Matters in Mitigation
52You have pleaded guilty, which is a significant factor in mitigation. You have saved Sarah the stress and distress of having to give evidence, and your plea means that the court and the prosecution are spared the trouble and expense of a trial. This factor carries greater weight than usual due to the impact of the pandemic upon the operations of the Court.
53I also take into account that your time on remand, and indeed into the future, has been made more difficult by the effect of the pandemic on how Corrections conduct their affairs, including quarantines, reduced visits and reduced access to courses.
54I accept that you have a degree of remorse, in the sense that you understand that what you did has led to criminal charges and you facing a term of imprisonment. You persist, however, in blaming Sarah. You told the police that you did not have sexual contact with her once you knew she was 15 and denied being the father of her child. You told Dr McConchie Sarah had taken advantage of you and lied about her age. Dr McConchie wrote:[27]
Mr Clark demonstrated full acknowledgment and regret about his actions relating to the current offence. He freely admitted he was “half to blame” for the brief relationship with the victim and stated he would “never again” be with someone much younger than himself as “it has caused so much trouble”.
[27]Exhibit D3, Psychological Report of Dr Mirabel McConchie Clinical Psychologist, dated 29 July 2021, pages 5-6
55You said similar things to Dr Evans, who considered that you struggled to apply concepts such as remorse, regret and shame to yourself.[28] Dr Evans wrote:[29]
whilst able to define the differences between right and wrong at a basic level, Mr Clark was less convincing when asked if he considered his actions as inappropriate, stating: “it all depends on the circumstances. At the same time, I know I did wrong but I felt like I was tricked into if . Correspondingly, when pressed to comment on whether others would consider his behaviours as wrong, he said: “my sister thinks I’m an idiot for going there. I should have checked for I.D. because I trust easily. In relationships I fall for people just like that” . Yet, Mr Clark did not refer to the illegality of his behaviour and persisted in referencing external elements as contributors to his actions
[28]Exhibit D2, Neuropsychological Report by Dr Loretta Evans Clinical Neurologist, dated 25 August 2021, paragraph 25
[29]Exhibit D2, page 12 paragraphs 24
56The prosecution also pointed to a statement made by you whilst on remand regarding your view towards another under-age and vulnerable complainant, to the effect that you did not care how old she was and that you would have a child with her because you wanted to do so.
57I take into account in mitigation that your childhood was afflicted by awful events, and I accept the evidence that your personality structure, learning difficulty, difficulty with verbal processing and your chaotic lifestyle including drug abuse, are linked to the trauma you suffered as a child. Your circumstances and the effect of them on your life make you an object of compassion for those reasons. This is relevant even in the face of your considerable criminal history.[30]
[30]Bugmy v The Queen (2013) 249 CLR 571, [43]-[44]
58Furthermore, in view of these matters, you are not an appropriate vehicle for the full weight of general deterrence.
59You have available to you 307 days of pre-sentence detention, into including 13 December 2021. For part of your time on remand for these matters you were also serving another sentence, of 3 months, which is relevant to the principle of totality. I note that the offending for which you received that 3 months sentence was not related to the matters for which I am sentencing you.
Other Sentencing Factors
Gravity of Offending
60Charge 1 is a course of conduct charge covering all of the sexual penetrations by you of the complainant after you learnt that she was 15.
61Sexual penetration of a child under 16 is an inherently serious offence. The law seeks to protect children from sexual activity for which they are too immature, and to which they cannot legally consent. The following statements by the Court of Appeal explain this:[31]
The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent. It is for this reason that a child’s consent is more accurately referred to as “apparent” or “ostensible” consent.
References to consent in these reasons should be understood as having that connotation. We have concluded that a child’s consent can never, of itself, be a mitigating factor. That is, proof that the child consented will not of itself differentiate the case for sentencing purposes from one where the child’s consent cannot be established. (Proven absence of consent, on the other hand, significantly increases the seriousness of the offending and the culpability of the offender.)
Proof that the child consented is the beginning, rather than the end, of the sentencing court’s inquiry. In assessing the gravity of the offence and the offender’s culpability, the court’s attention will be directed not at consent as such but at the circumstances in which the consent came to be given.
Typically, the giving of the consent will be a reflection of the relationship between the child and the offender.
[31]Clarkson v The Queen (2011) 32 VR 361, 364 [3]-[6]
62Whilst you were still only 20 at the time of this offence, you were 5 years older than Sarah. The difference in maturity and stage of life between a 15 year old and a 20 year old is far greater than arises with such a difference one both parties are adults. Even if I accept your counsel's submission that you are immature, you do not have autism spectrum disorder or an intellectual disability which might mean that your mental age or level of maturity is more on a par with a child of 15.
63A very serious aspect of your offending is that you were aware that Sarah was seeking to become pregnant. You knew she was 15 years old. She did become pregnant. Although she wished for that to occur, she was too young to be making such a decision. You were clearly old enough to know better.
64Furthermore, your unprotected sexual penetrations also created the risk of sexually transmitted disease.[32]
[32]Victim Impact Statement of complainant, page 5, Physical impact of the crime
65Your offending against Sarah caused her to have a child when she was barely 16 years old. Her social life, and her schooling are negatively affected. She suffered post-natal depression, and anxiety. Furthermore, Sarah’s parents must now care not only for their daughter but also their grandson, which impacts their freedom of movement and lifestyle. Her mother feels that friends and family look down on them following Sarah’s pregnancy at such a young age.
66Whilst Charge 1 does not have some of the more aggravating features that sometimes present, such as threats, large age discrepancies and abuse of power, I must sentence you for the course of conduct which persisted for more than a month, which involved many instances of sexual penetration of a child, and in the course of which the complainant became pregnant and exposed her to the risk of a sexually transmitted disease. Furthermore, although you say that you find younger people easer to relate to, you were 5 years older than the complainant, and as I have said I do not consider that your mental state mitigates your culpability in respect to charge 1. I consider that the gravity of this charged conduct is well above the lower level of seriousness of this inherently serious offence and, is in the least in the mid-range.
67Furthermore, as I have said, I do not accept that your ability to understand that your conduct was wrong or your ability to exercise sound judgment in deciding to pursue this course of conduct was appreciably reduced by reason of your mental state. You were well aware that Sarah was 15, and you knew that sexual activity with her was against the law. Whilst I accept that the trauma to which you were subject as a child has impacted your personality structure and thinking processes, as Dr Evans has noted this offending was also in the context of rampant abuse of methylamphetamine and possible alcohol abuse.
68I do accept that your behaviour in respect to Charge 2 could have been impacted by your chaotic lifestyle, and inability to understand the perspective of others, to some degree. That being said, you would have been well aware that making a threat was in breach of the order.
Other Sentencing Principles
69At the time of the commission of these offences you were aged 20 and 21. You are now 23. Generally, when sentencing a youthful or young offender the court gives particular emphasis to promoting the rehabilitation of that person. In your case, however, your past history, your personality structure and issues, and your lack of real insight or remorse led me to consider that Dr Evan’s opinion as to your prospects of conviction – that is that there is a high risk of you reoffending.
70I consider that not only is your risk of offending generally high, but also that there is a real risk that you may again sexually offend against an underage person. Thus, specific deterrence carries real weight in sentencing you. You must understand that if you have sexual contact with underage people, you will receive a significant prison sentence. Nothing in the reports of Dr Evans or Dr McConchie makes me think that you are incapable of understanding that, or of bearing it in mind in future. If you choose to prioritise your wish for sex and intimacy over the law, you will do so knowing full well the consequences.
71Furthermore, for offending of the type in both Charges 1 and 2, the principles of general deterrence, denunciation and just punishment carry significant weight. People must realise that if they engage in sexual activity with a child, they face the very real likelihood of going to prison for a significant period of time. This is the case even if the child is apparently willing to engage in sexual activity.
72Charges 1 and 2 involve different types of conduct and are separated in time by more than a year. I will order a degree of cumulation between the sentences of those charges.
73I was referred to four cases for assistance with current sentencing practice. Two of the cases noted by the Prosecution were then appealed, one successfully. I have also considered other decisions of the Court of Appeal.[33] When sentencing you on Charge 1, I may only have regard to sentences imposed in other cases where the standard sentence applied and was taken into account.[34] The principles which were articulated in past cases do still apply. Each case to which I was referred is different to yours on the facts to some degree, and the range of sentences imposed in those cases shows that there is quite a wide range when sentencing for this type of charge.
[33] DPP v Palmer (a pseudonym) [2020] VCC 300; DPP v Morey [2020] VCC 320; DPP v Spottiswood [2021] VSCA 146; DPP v Amaral [2020] VSCA 290; DPP v Jenkins (a pseudonym) [2019] VCC 1504 and the appeal decision Jenkins v The Queen [2021] VSCA 65; DPP v Pennington (a pseudonym) [2019] VCC 1700 and the appeal decision Cooke v The Queen [2021] VSCA 70.
[34] Sentencing Act 1991 s5B(2)(b)
74Sexual Penetration of a child under 16 carries a maximum penalty of 15 years imprisonment and the standard sentence applicable is 6 years. The Sentencing Act also requires that I set a non-parole period that is at least 60 percent of the total sentence, unless I consider that it is not in the interests of justice to do so.
75The period specified as the standard sentence is, 'a sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness'.[35] The standard sentence is a guidepost, as is the maximum penalty, and is but one of the many factors that I am required to take into account. The approach I must take to sentencing is still that of distilling all the relevant factors and arriving at, via the instinctive or intuitive synthesis, the sentences I consider appropriate in all the circumstances.
[35]Sentencing Act 1991 s5A(1)(b)
76I do not consider that a sentencing involving prison in combination with a CCO is within range. The gravity of the offending in respect to Charge 1 is well above the lower level that might allow for such a disposition. Furthermore, the need to deter you and others, as well as to denounce your conduct and achieve just punishment all mean that a sentence of imprisonment is called for which is well beyond that which could be combined with a CCO.
77Mr Clark, would you please stand. On Charge 1 your sentence is four years' imprisonment. On Charge 2 the sentence is five months' imprisonment. Three months of the sentence on Charge 2 will be served cumulatively on the sentence on Charge 1. That leads to a total effective sentence of four years and three months. I will set a non‑parole period of three years. You may sit down.
78I declare that 307 days have been served of pre‑sentence detention and I direct that that be entered into the records of the court. Pursuant to s6AAA I indicate that if you had not pleaded guilty I would have sentenced you to six years' imprisonment with a non‑parole period of four years.
79Charge 1 is a class 1 offence under the Sex Offenders Registration Act and by operation of that Act you will be required to report in accordance with that Act for a period of 15 years.
80ADDENDUM – following the imposition of sentence and distribution of Orders the Court’s attention was drawn to an error regarding my statement of the period of reporting pursuant to the Sex Offenders Registration Act. The parties agreed that the operation of that Act means that the applicable reporting period, pursuant to s34(1)(c)(ii), taking into account s34(1A), is life.
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