Director of Public Prosecutions v Clayton

[2016] VCC 1376

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01167

DIRECTOR OF PUBLIC PROSECUTIONS

v

KYLIE CLAYTON

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	15 September 2016
DATE OF SENTENCE:	16 September 2016
CASE MAY BE CITED AS:	DPP v Clayton
MEDIUM NEUTRAL CITATION:	[2016] VCC 1376

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr H. Boyd-Wilson	Office of Public Prosecutions
For the Accused	Ms R. Sleeth	Victoria Legal Aid

HIS HONOUR: 

1Kylie Clayton, in June of 2014 you attended an underage football match.  You were with your daughter who was friendly with or knew some of the players.  The victim was part of the football team.  He was not playing that day as he was injured.  He joined your daughter in your car to watch the game.  He was in the same year at the local high school as your daughter.  That day, watching the football game, was the first time you had met the victim.

2By reason of all the circumstances, you were in no doubt he was a child.  In fact, he was then aged 14 years and about 11 months.

3Following this day, the victim spent more time with your daughter.  She was seeing another young man, who was the victim's best friend or close friend.  The victim would come to your house to be with his friend and your daughter.  You became flirtatious with him.  You sent him text messages, and at some point those messages became inappropriately sexual in nature.

4A couple of weeks after the first meeting, the victim was again in your car at a football match.  He had earlier left his bag at your house.  You offered to drive him back to the house and get the bag.  This meant that you were alone with him in the house.  What followed was set out in the prosecution opening, which was tendered on the plea.  It read:

"They arrived back at the accused's house and were alone.  The complainant or victim was getting changed when the accused commented on his body.  The accused then asked the complainant if she could, 'Suck his dick' and the complainant replied, 'Yes'.  The complainant's pants were dropped to his ankles and the accused put the complainant's penis into her mouth.  After about five or six minutes, the complainant ejaculated into the accused's mouth.  The accused then drove the complainant back to the football match to watch the rest of the game."

5You were at this point an adult, assisting a 14-year-old child who had left a bag at your premises.  You were 36 years old and a mother of two similar aged teenage children and two younger children.  Without more, what I have just set out only has to be said for the seriousness of what you did to be evident.  However, it did not stop there.

6After this event of the oral penetration, you and the victim continued to send text messages.  On the weekend following the first sexual penetration, the victim, his male friend and your daughter and you went to a film.  Afterwards, the victim was to stay the night at your house.  Once home, your daughter and her friend went to your daughter's room.  You and the victim became intimate in the lounge room, ultimately going to your room for sexual intercourse.  After the victim ended this sexual intercourse he left the room and slept in the lounge.

7He left your house as soon as he could the next morning.  Thereafter, you continued to send him text messages but he was not interested.  You went to visit him, but no sexual activity occurred.  Ultimately, the victim told his friend, who told his parents, who in turn informed the victim's parents.  The matter was then put before the police.  However, this was not immediate.  The victim took some time to come to terms with what had occurred.  It was not until 12 months after these events that you were interviewed by the police.  The victim's emotional and psychological state deteriorated significantly.

8The victim impact statement from him in this case provides yet again, compelling evidence of the terrible impact on adolescent victims of sexual offending at the hands of adults.  The judges of this court have learned and continue to learn from victims the great toll sexual abuse takes on so many aspects of the lives of the victims and their families.

9It seems clear that prior to this sexual offending, the victim was a vibrant, happy, motivated young man, much loved by his family and admired by those who came in contact with him.  He had a lot to look forward to in his sporting and educational endeavours.  As is often said, this time of late teenage years can be and often are remembered as the best years.  It looked like that was going to be the case for the victim, but his experience after the impact of your crimes have shown differently.

10How he commenced his victim impact statement reveals the tragic difference in his world from those times before the offending to those after.  In simple but arresting terms, he wrote the following:

"I attempted suicide, May 29 2015.  On a different occasion, I purposely overdosed on prescribed medication because I didn't want to attend an event and was so stressed over what had happened.  The self-harm was relentless.  I was cutting myself because of the incident.  I started to misuse alcohol to cope with my emotions.  I drank heavily, especially at parties, because it made me feel numb and took away the pain.  I often felt angry.  All the time.  And get angry over small things.  It can be hard to control.  When certain things remind me of the incident, I become impulsively frustrated.

"I've had significant trouble sleeping.  I've experienced nightmares that eventually went away, however then I couldn't sleep at all.  I was put on medication to help my sleep, and that brought back the nightmares.  Since the incident I have not wanted to get out of bed, and wanted to have nothing to do with the world.  I used to feel scared when being reminded of the incident or seeing someone related.  Now when I think about it, I feel uncomfortable and awkward.  I've had a lot of troubles with my short-term memory, and consider that to be a way my brain has coped with the incident".

11He then went on to indicate that he has been diagnosed with post-traumatic stress disorder, which he has endeavoured to manage with short-term medication, as well as mindfulness, relaxation, and regular appointments with a psychologist, and lately a psychiatrist.

12He also indicated that because of his untreated post-traumatic stress disorder, he did have difficulty focusing, and he struggled with motivation at school.  He was too worried about the past and not interested enough in his future.  His relationships have been affected, and he wanted nothing to do with his friends or his family because he felt angry.

13He was at the time building up to achieve a place in a TAC or underage TAC Cup list to lead on towards an AFL career.  However, he was unable to participate, and all that fell away.

14The victim's mother wrote in heartfelt terms of the deterioration in her son and the impact on the family generally.  She wrote, in March of 2015 her son told her about depression.  She speaks of him before as being well-adjusted, intelligent, very outgoing and confident, but within a matter of weeks he turned to a sullen, angry boy, failing school and generally not coping.  All of that made her confused.  She did not know what was happening until she had information, as I have spoken about, from other parents as to what had occurred.

15She says that she felt very upset and overwhelmed by the hurt and pain that she felt for her son:

"In September of 2015 I found out around the same time J had attempted suicide and tried to hang himself in our shed.  I can't explain how it feels to be close to losing your son forever.  I was in a living hell".

16She speaks of taking her son to a psychologist and a psychiatrist, of overdoses with Valium; that he took to punching holes in his wall, and there was an aspect of fear or the family being frightened at his outbursts of anger.

17He was doing well at school, particularly in the early parts of 2015.  He was, as his mother points out, in an elite training squad with the Calder Canons.  And despite all that and the assistance he was getting from his friends, was unable to keep going.  He felt like a "loser" was the quote that his mother put in her victim impact statement.

18She says:  "Over the last 17 months I have been angry and frustrated".  She, like so many in his position who write in victim impact statements about what has occurred to their children, she too writes, "I have even blamed myself for what has happened to him".  I pause here to point out that of course the victim's mother is not to blame in any way at all, and should not take that upon herself.  The only person to blame in this, Ms Clayton, is you.

19She goes on:

"I have cried many tears over the fact that my son attempted suicide, and only because the rope broke is he still with us today.  To watch your child suffer is heartbreaking, and knowing that he cannot come to you for support or help is devastating.  It makes me sad that J may never reach his potential in school, football or life".

20She says she is fearful for his future and what I might bring, but, "I will always be there for [the victim] and I will keep finding the strength to support my broken boy".

21The courts have learned of the long-lasting effects of sexual offending on victims.  That is particularly pertinent in this case, a matter I will refer to in more detail shortly.  As was repeated again by the Court of Appeal in a judgment published just this week on Wednesday, "The social rehabilitation of victims is an important matter that can be undermined by inadequate sentences".

22I need to make clear that in the required assessment by me of the gravity of your crimes, I have taken into account the significant age gap.  You were 36 and the victim 14, a month short of 15.  The victim, the parents of the victim, and the community, were entitled to expect that you, as the adult in charge, would act appropriately with the friend of your daughter, and you would not breach the trust others had in you.  Parents are entitled to expect that to allow their children to socialise and enjoy the company of their peers, that the adults looking after their young ones will do exactly that: look after them, and not exploit the situation for their own selfish sexual gratification.

23These are what we all see as normal social standards, and when they are breached, causing such harm as is here evident, the community is entitled to expect that the courts will assess the offending as serious criminality.

24There are of course many other dreadful examples of sexual abuse of children that come before the courts.  However, while keeping the full spectrum of offending well in mind, this offending remains serious.  The other end of the scale of course are those cases of 18-year-olds in otherwise appropriate relationships with 15-year-olds who offend by engaging in sexual conduct.

25The Court of Appeal in the important decision of Clarkson has given guidance to sentencing judges in respect of the offence of sexual penetration of a child under the age of 16.  In my view, taking into account the matter of the age difference and the breach of trust, and the impact of the victim, these all establish the seriousness of your crimes.

26I do accept that the offending was opportunistic.  You exploited the circumstances that arose.  You are not a sexual predator and do not suffer from any sexual deviancy.  This is well-established on the expert evidence before me, together with my own analysis of the facts and circumstances of the offending and you as the offender.

27So it is clear to you, you were the one responsible.  Your response as to your conduct, which was set out in your record of interview, which I do not need to articulate, was covered by both of the Crown opening and the evidence of Ms Matthews, but your response in the record of interview was wrong and misguided.

28As to your moral culpability, there are some areas of complexities.  These matters arise because of your own tragic upbringing and your sense of emotional isolation at the time.  The central aspect of your personal circumstances is the long-term effect on you of the brutal and sustained sexual abuse you suffered at the hands of your stepfather.

29You were sexually abused from around the age of ten, and on to when you were 18, when you finally were able to seek refuge and help from a boyfriend.  Your stepfather was charged, and on his plea of guilty received imprisonment of seven years with a minimum of four.

30The very experienced judge in his enviably concise sentencing remarks insightfully said this:

"Although there is no victim impact statement [meaning from you] I see enough of these cases to know that in very many cases, the emotional life of the victim is irretrievably wrecked."

31I accept the expert evidence from Ms Matthews that, as a consequence of the sexual abuse you endured, you have chronic post-traumatic stress disorder.  This is no small matter.  Almost as a symptom of that serious disorder, you have not engaged in any treatment over the years.  Although you have worked, and more importantly raised four children, mainly as a single mother, and done so with great dedication, always in the background is this difficulty with post-traumatic stress disorder, making your mental health that much more fragile.

32Thus it is said when you felt alone, isolated, and a brief relationship had ended, the kindness of the victim saw you step across appropriate boundaries into sexual offending with him.  Thus, though the moral culpability of your crimes is high, here I can to a degree appropriately moderate the impact of denunciation and punishment because of the impact and ongoing effect on your life of your own sexual abuse.  Thus I can accept that your capacity to always make the best judgments was not to the full, given the particular circumstances of loneliness and rejection at the time, superimposed upon the background of your own post-traumatic stress disorder. 

33But further complicating this is your own insight into the offending and its impact on the victim, which was limited.  Things have improved in that regard since you have read the victim impact statement.  As noted briefly before, until then your response was to seek to cast some responsibility onto the victim, and your at least initial expression of remorse was more centred on your own circumstances, and especially that of your own children.  Ms Matthews considered in her evidence both written and oral before me, that you had "incomplete remorse". 

34Your counsel, relying on Ms Matthews' report and Ms Matthews' oral evidence, stressed the link between sexual abuse as a child and later perpetration.  Ms Matthews in her oral evidence acknowledged that there were complexities relating to female abuse victims and later perpetration.  However, I accept the evidence of Ms Matthews on this topic.  The effect on you of your abuse cannot be and is not ignored because you offended in the same way later; quite the contrary.

35In the end, as the High Court has made clear in a most recent case named Bugmy, dreadful circumstances of an offender's upbringing are always relevant.  The mitigatory aspect here is that your circumstances rightly engender a sense of compassion and mercy for you.  Also, your circumstance and your post-traumatic stress disorder, brought about as it was at the hands of your stepfather, a dreadful sexual predator, mean I will suitably moderate the always weighty matter of deterrence to others.  As I have already said, I have seen your moral culpability as lower by reason of your post-traumatic stress disorder.

36Evidence was put before me from those that know you best, a friend from the community house, most particularly your ex-husband, whose evidence and letter helped me understand just how hard any prison would be for you.  Those witness made it clear that you have led a decent life, and have given much to ensure that your own children are happy are secure, in stark contrast to what you endured.  Your efforts as a parent are to your credit.

37Your rehabilitation is important.  I am confident that this experience in the criminal justice system will ensure that you never offend in this or any manner again.  I expect you will resume your lawful ways in the future.

38Your counsel contended that yours was an exceptional case, and one allowing for a sentence not involving any imprisonment.  The exceptional circumstances which she relied upon were mainly those arising from your own experience as a victim of sexual abuse.  She also pointed out your early plea of guilty and your lack of prior relevant convictions, and that the onerous aspect of any prison sentence upon you because of how your children rely upon you.  Your ex-husband and your mother will look after the children, but it will be particularly difficult.  The mitigatory aspect of this was confined to the extra burden on you, or the extra burden you will carry in gaol, knowing how difficult it will be for your children, your mother and your ex-husband.

39Your counsel submitted that a lengthy community corrections order could satisfy all sentencing purposes.  Such a sentence would promote rehabilitation, enable sexual offender programs to be done, and enable mandated treatment for your own post-traumatic stress disorder, as well as simultaneously punishing you.  The message of deterrence, so the submission went, would remain clear via a community corrections order, or sufficiently so, given the lower weight that general deterrence should have in your case.

40The prosecution contended the only just and appropriate sentence, given the gravity of the offending, was one involving immediate imprisonment.  As the decision in Clarkson that I have referred to, and the all to regular experience of judges in this court, the circumstances of the offending and of the offenders in respect of this offence vary very, very significantly.  Thus it is not surprising that sentencing statistics show penalties involving gaol and non-custodial penalties.

41However, the circumstances of this case, involving such an age difference, breach of trust, and such demonstrated harm to the victim, cannot be ignored by reason of your own circumstances which elicit compassion and require a measure of mercy.

42The legislative requirement is that I must not impose imprisonment unless all sentencing purposes cannot be satisfied by a sentence that does not involve imprisonment.  In other words, imprisonment is truly the punishment of last resort.

43I have considered also all that the Court of Appeal has said in its guideline judgment of Boulton and cases subsequent to that decision in respect of community corrections order, and the changes in our Sentencing Act.  While the sentencing landscape, as it has been described, has significantly changed as a consequence of the availability of longer community corrections order and combine community corrections order and gaol of longer duration, in this case, synthesising all matters for and against, and all aspects of the offending and you as the offender, I am left with the always grave conclusion that there is no other option but a term of imprisonment.

44I do not consider a combined community corrections order is appropriate.  Rather, a period of potential parole ought be available.  I have not had you assessed for a community corrections order.  I was confident you would be suitable, and the obvious programs would have been recommended.  In my view, I can establish conditions that will facilitate your reform or rehabilitation as required by the statute by allowing for a period of potential parole.

45I must consider the appropriate sentence for each offence, and in this case also consider orders for some cumulation.  The offences were separate, and the second was committed after you had time to consider what you have done and stop.  I have revisited the overall sentence to ensure that it meets the totality of your offending, no more and no less.

46In fixing the non-parole period I have, in my view, allowed again an added measure of mercy, such that the minimum period of imprisonment is all that justice requires and no more.  Though you and those who stand by you will not necessarily appreciate or accept what I say, this sentence is a merciful one, and much less than might have been the case if not for your own awful experience as a young person.

47The Court of Appeal in recent cases, that is in recent months, made it clear to sentencing judges that in general terms, sentences for sexual offences against children, especially the most serious cases, must be "stepped up".  I have appreciated that guidance, but in the particular circumstances of this case, a lower sentence is well warranted, not one demonstrating the concept that the criminal justice system should self-correct by sentencing upwards.

48Doing the best I can, I impose the following sentence.  Can you please stand, Ms Clayton.

49In respect of Charge 1, sexual penetration, you are sentenced to a term of imprisonment of 14 months.

50In respect of Charge 2, you are sentenced to a term of imprisonment of 18 months.

51Six months of the term in respect of Charge 1 is cumulative upon the sentence of Charge 2, giving a total sentence of 24 months, and I fix a minimum term of ten months before you are eligible for parole.

52Had you pleaded not guilty to this offence and been found guilty of it, I would have imposed a sentence of three years and four months, with a non-parole period of two years and two months.

53I intend to make the other orders sought by the prosecution in respect of s.464ZF, and do so because of the seriousness of the offences, and because it is in the interests of justice that I make an order that you provide a forensic sample so that your DNA can be extracted and kept on a database.

54There is one other order that I am required to make in respect of the Sex Offenders Register.  Just remind me, please, Mr Prosecutor?

55MR BOYD-WILSON:  The reporting period will be for life, Your Honour, with two class one offences.

56HIS HONOUR:  Yes.  As a consequence of the legislation, I have no discretion.  I must advise you that you must register on the Sex Offenders Register and remain upon that register for life.  There are consequences for not registering, and there are consequences for breaching the conditions of that registration.  Your lawyers will explain that to you.

57In general terms, I must provide to you now, a document to indicate to you that you have been provided with further documents setting out your requirements and the consequences.  You must sign a document saying that I have given you the document.

58Mr Prosecutor and Ms Sleeth, have I assumed something in respect of 464ZF, or was that an application that you did make?

59MR BOYD-WILSON:  It was an application made, Your Honour.

60HIS HONOUR:  I am sorry, it was there, and I just did not see it and I thought I might have.

61MR BOYD-WILSON:  Had Your Honour received the draft order already?

62HIS HONOUR:  I do not know, but hand something up.  I have granted the order because it is in the interests of justice that I do so.  I indicate it is because of the seriousness of the circumstances, and that the granting of the order is in the public interest.

63Ms Sleeth, there is a document that has to be handed to Ms Clayton now, and I would ask that you do that.  Ms Sleeth, will you explain further the implications of s.464ZF?

64MS SLEETH:  Yes, Your Honour.

65HIS HONOUR:  I will, as required to statute, indicate to Ms Clayton in the difficult circumstances that currently no doubt she is in, that if she does not cooperate with the authorities when she is asked to provide the sample, they can use reasonable force to get the sample, and the way through it is to cooperate.

66MS SLEETH:  Yes, Your Honour.

67HIS HONOUR:  The document that I have received is an acknowledgment signed by Ms Clayton that she is being a reachable offender within the meaning of the Sex Offenders Registration Act, acknowledges receiving a notice, being the notice of reporting obligations, which is the document she was given.  It is the content of those documents that counts, not the fact that she has got it.  If you will explain that to her in due course.

68MS SLEETH:  Yes, Your Honour.

69HIS HONOUR:  I thank counsel again for their considerable assistance in respect of difficult matters, and the dignity of the parties in respect of what is a difficult matter.

70Ms Clayton, as a consequence of the way the courts are set up, there is no opportunity so that you can spend any time with anyone who is here to support you.  They will, through the information received from your lawyer Ms Sleeth, explain to them, and it will be explained to you how you might get in contact with them as soon as possible, but you must go with the prison authorities now.  Thank you.

71I will just stand down and the next matter will proceed.

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