Director of Public Prosecutions v Cleve (a pseudonym)

[2023] VCC 580

IN THE COUNTY COURT OF VICTORIA

AT melbourne

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

LLOYD CLEVE(a pseudonym)

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JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2023
DATE OF SENTENCE:	4 April 2023
CASE MAY BE CITED AS:	DPP v Cleve (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 580

REASONS FOR SENTENCE
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Subject:Criminal law – Sentence  

Catchwords:              Guilty plea – charges of incest and sexual penetration of a sibling - three charges of indecent act with a child under the age of 16 – one charge of sexual assault of a child under the age of 16 and two charges of sexual assault – offending against brother over a seven year period when victim was between the ages of 10-17 years – profound victim impact – first four charges committed when offender was under the age of 18 – relevant prior criminal history – general deterrence, denunciation and just punishment sentencing considerations of weight – specific deterrence also relevant in light of criminal history.

Legislation Cited:      Crimes Act 1958; Children Youth and Families Act 2005; Sentencing Act 1991; Sex Offenders Registration Act 2004

Cases Cited:Sherrit v The Queen [2015] VSCA 1; R v Mills [1998] 4 VR 235; Azzopardi v The Queen [2011] VSCA 372; CNK v The Queen [2011] VSCA 228; R v Verdins [2007] VSCA 62; Brown v The Queen [2019] VSCA 286; Holland (a pseudonym) v The Queen [2018] VSCA 241; DPP v Hutchinson (a pseudonym) [2018] VSCA 153.

Sentence:                  Total effective sentence of four years, seven months’ imprisonment with a non-parole period of two years, nine months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A.J. Grant	Office of Public Prosecutions Victoria
For the Accused	Mr P.F. Bloeman	Leanne Warren & Associates

HER HONOUR:

1Lloyd Cleve you have pleaded guilty to the following charges:

(a) three charges of indecent act with a child under 16 contrary to s47(1) of the Crimes Act 1958 ('the Act'), the maximum penalty for which is 10 years' imprisonment;

(b) one charge of incest with a sibling contrary to s44 (4) of the Act, the maximum penalty for which is 5 years' imprisonment;

(c) one charge of sexual assault of a child under 16 contrary to s49D(1) of the Act, the maximum penalty for which is 10 years' imprisonment;

(d) one charge of sexual penetration of a sibling contrary to s50F(1) of the Act, the maximum penalty for which is 5 years' imprisonment; and

(e) two charges of sexual assault contrary to s40 of the Act, the maximum penalty for which is 10 years' imprisonment.

2The victim of your offending was your younger brother, who was born in December 2003 and was between 10 and 17 years of age over the course of your offending. The sexual offending against your biological brother occurred between July 2014 – March 2016, and again between January 2019 - April 2021. The offending spanned five years in total.  In April 2021, the victim complained about your abuse to his older brother. The victim then made a statement to police in April 2021, following which you were arrested and remanded in custody.

3You were born in April 1998 and were aged between 16 and 22 years of age at the time of the offending. You have a prior conviction for sexual offences, including three charges of rape, for which you were sentenced to an 18-month Youth Supervision Order by the County Court, on appeal from the Children's Court, in October 2014[1]. In that case, the victims of your offending were three teenage girls who you knew through school.

[1]The sentence was imposed by the County Court on 21 October 2014 on appeal from a sentence imposed by the Children’s Court on 7 August 2014.

Circumstances of the Offending

4To place your offending in context, it is necessary to outline some of your family history.

5You are the third of four siblings. In addition to your younger brother, you have an older brother and sister. The four of you lived with your parents until they separated in August 2014. Following their separation, you and your younger brother lived with your father, while your older sister continued to live with her mother. Your older brother moved into his own home at this time.

6Sadly, your father took his own life in around 2014. The victim was only 10 years old when he lost his father, and you were 15. Your older brother became the legal guardian of the two of you, and you both moved into his home in Croydon. The offending against your younger brother began soon after.

Charge 1 – indecent act with a child under 16

7The first incident of sexual offending occurred between 1 July and 1 December 2014. On this occasion, you called the victim into your bedroom, saying you wanted to 'show him something'. You were lying on his bed and began 'play fighting' with him. While you were on the bed, you slid your right hand underneath the victim's clothes and touched his penis. The victim felt helpless. He left the room, but did not tell anyone what you had done. This conduct is the subject of charge 1 – indecent act with child under 16 years.

Charge 2 – indecent act with a child under 16

8The second incident occurred on an occasion when the three of you were staying for a few months at the home of your older brother's former parents' in law in Mount Evelyn between 1 October 2015 and 21 January 2016.

9The victim was between 11-12 years of age at this time, and you were 17 years old. On this occasion, you entered his room, while he was sitting on the bed, and slid your hand under his clothes to touch his penis. You then left the room. This conduct is the subject of Charge 2 – indecent act with child under 16 years.

Charge 3 - Incest

10On another occasion during the period you lived in Mount Evelyn, you walked into a spare room where the victim was watching television. You began 'play fighting' with him. While doing so, you pulled a blanket over yourself and the victim, and tried to remove his pants. Unable to do so, you told the victim to take his pants off, but he refused. You then pulled his pants and underwear down to his knees, and placed a hand on his head against a pillow to prevent him from moving. When he protested, you told the victim to 'shut up'. You then penetrated his anus with your finger. The victim, who was crying at this stage, asked you to stop. You replied that 'it feels nice' before getting up and leaving the room. This conduct gives rise to Charge 3 – incest.

Charge 4 – indecent act with a child under 16

11Between January 2016 and 31 October 2016, whilst living together in Mooroolbark, the victim was 12 years old and you were between 17-18. On one occasion, you told the victim to come into your room after he had finished eating lunch. You shut the door, and again began 'play fighting' with the victim after pushing him onto your bed. You pulled the blanket over the two of you and told the victim to remove his pants. The victim refused and in response you pulled his pants and underwear down to his ankles. You then removed your own pants and lay naked under the blanket. You took the victim's penis in your hand and moved his penis against your anal area. After a short period, you stood up and dressed, leaving the room. This conduct is the subject of charge 4 – indecent act with a child under 16.

12Between March 2016 and January 2019, you moved out of the Mount Evelyn property and did not offend during that period. However, the abuse resumed soon after you returned to live together at your older brother's new house in Mount Evelyn.

Charge 5 – sexual assault of a child under 16

13By this time, the victim was 15 years old and you were between the ages of 20-21. On a date between 1 January 2019 and 31 July 2019, you walked into the victim's bedroom and closed the door. You began 'play fighting' with him on his bed before placing your hand under his clothing and touching his penis. The victim remembers you told him to shave his pubic hair on this occasion. This conduct is the subject of charge 5 – sexual assault of a child under 16.

Charge 6 – sexual penetration of a sibling

14On an occasion between 1 January 2019 and 4 April 2021, when you were between 21 and 22 years of age, and the victim was between 15-17, you sexually penetrated his anus with your finger. You did so when you were both home alone at the house in Mount Evelyn after 'wrestling' with the victim in his bedroom. After doing so, you left the victim in his room where he cried. This act is the subject of charge 6 – sexual penetration of a sibling.

Charge 7 – sexual assault

15When you were 22, and the victim was 17, you again touched his penis inside his clothing after 'wrestling' with him at the house in Mount Evelyn. This occurred between 1 January 2021 and 4 April 2021 and is the subject of charge 7 – sexual assault.

16On this occasion, the victim grabbed hold of you and tried to hit you. He yelled at you and told you to apologise for your conduct. You moved off him and left the room. You threatened to kill the victim if he told anyone about the sexual abuse. You said you would take your own life, and that of the victim, if he told anyone. The victim believed you would carry out these threats.

17At a time when you were between 21-22 years of age, you walked into the victim's bedroom in the house at Mount Evelyn. After sexually fondling the victim, he tried to escape from you. You became aggressive in response, throwing a chair at the victim. You punched the victim to the side of his head. You are not charged with this offending. It is relied upon by the prosecution as part of the context in which your offending occurred.

Charge 8 – sexual assault

18The last occasion of offending occurred between 1 January 2021 and 4 April 2021 when the victim was between 16 -17 years of age. You entered his bedroom and asked if he wanted a cuddle. You then told the victim to remove his pants and underwear. The victim did so, and you then grabbed his penis and moved it around your anal area. This act is the subject of Charge 8 – sexual assault.

Complaint

19In February 2021, the victim was with his best friend waiting for a bus when he disclosed the fact you had been 'touching him'. The victim also said that you had threatened to kill him if he revealed your offending to anyone.

20On 1 April 2021, the victim sent his older brother a text message in which he told him about the sexual abuse, stating he felt suicidal as a result of your conduct and the threats made by you. The victim disclosed more detail regarding your abuse when he met with his older brother.

21On Monday 4 April 2021, the victim reported your offending to the police, supported by his older brother.

22You were arrested and interviewed on 4 April 2021. During the interview, you described the victim as your 'best friend', saying you would do anything for him. You told police you 'acted more like a parent than an adult' towards the victim, and said you had never touched his penis in a sexual way, but may have given him a 'sack tap' or have grabbed him while wrestling.

23You were remanded in custody that day. On 20 September 2022, you pleaded guilty to the offences prior to the commencement of the special hearing scheduled that day for the evidence of the victim to be given.

Gravity of offending and victim impact

24Sexual offending against children will always be viewed as serious offending. The law places an absolute prohibition on sexual activity with a child, which is founded on a presumption of harm. It is recognised that sexual activity involving children can have a profound and lasting impact on their emotional and psychological wellbeing. That this is true is borne out by the victim's impact statement read at the hearing of your plea.

25As the much older brother of the victim, your offending was a gross breach of the relationship of trust he was entitled to expect of you. By the age of 11, the victim had experienced the separation of his parents, and then the loss of his father in tragic circumstances. You and he had been taken into the home of your older brother. He was entitled to the refuge that this home provided at such a young age. By your offending, you undermined the emotional security and safety he was entitled to enjoy as a child in the family home. Instead, you exploited his vulnerability by your repeated sexual abuse.

26There are other factors that aggravate your offending. It occurred over a prolonged period, interrupted only for the period you moved out of the family home. Under the guise of 'play fighting' or 'wrestling' with the victim, you repeatedly took the opportunity to offend. Moreover, on at least one occasion your offending was accompanied by threats that you would kill the victim or yourself if he told anyone about your offending. Other offending occurred in the context of you having acted violently towards the victim, throwing a chair at him, and punching him to the side of the head. These acts can only have heightened the victim's feelings of vulnerability and fear. The offending only ceased when the victim, then aged 17, complained about your conduct. You did not desist of your own volition, despite the many instances where the victim refused your demands that he remove his pants, and other occasions where he was visibly upset by your offending.

27The sexual abuse has had a multi-faceted and enduring impact on the victim. This is clear from his victim impact statement where he highlights how powerless he felt as a child to deal with your offending. He speaks of the way you betrayed his trust, saying he was 'constantly petrified' of someone who was 'meant to be family', someone he loved. He states:

'For so long I didn't even know it was wrong. All I knew was I didn't like it and that when it happened I had to deal with it and that I wasn't allowed to tell anyone.'

28The victim says it is now hard for him to move on. Your offending has caused him mental trauma, including anxiety attacks and significant depression. It has impacted on his ability to form intimate relationships. He says he needs to isolate himself at times, describing feeling 'alien' to others. He finished his victim impact statement by simply stating that you have 'truly damaged every part of my life'.

29Your crimes have also had a profound impact on the life of your older brother, who was the legal guardian for the two of you at the time of your offending. Although he bears no responsibility for your actions, he says he feels overwhelmed by guilt for failing to protect the victim. He too speaks of a betrayal of the trust he placed in you, by allowing you to return to his home. He described the emotional and financial toll involved in moving home to support his younger brother.  He says it is heartbreaking to see the victim suffering so much.

30Mr Cleve, there can be no doubt this was serious offending that has caused significant harm. You were subject to a Youth Supervision Order from October 2014 for other serious sexual offences, yet you continued to sexually offend against your brother until 2021. You bear a high level of moral culpability for your conduct, although this must be moderated by reason of your youth at the time of the offending; and other factors to which I will return later in my reasons for sentence.

Personal circumstances

31I now turn to your personal circumstances, much of which have been drawn from the psychological report of Ms Naomi Cameron dated 31 January 2023 which was tendered on your plea.[2]

[2] Exhibit 1, Psychological report of Ms Naomi Cameron dated 31 January 2023.

32You were born in April 1998, the third of four children. You describe a “mixed” childhood, saying you struggled after your youngest brother was born, with you then receiving less attention from your parents. You report your mother drank heavily, and lost interest in the children. You recall witnessing occasional verbal and physical violence between your parents, and report that you were physically disciplined from time to time.

33Your family divided after your parent's separation, during which you temporarily lost contact with your mother. You report feeling a sense a responsibility for this, having told your father about the secret of your mother's relationship with other men.

34Your relationship with your sister became strained after she sided with your mother following the separation. You were estranged from your mother for seven years, only resuming contact following your remand in custody on these charges. You now talk regularly, and your mother remains supportive of you.

35During your early adolescence, you enjoyed a close relationship with your father and describe being 'shattered' by his death.

36Following your father’s death, you moved to live with your older brother, but report living a transient lifestyle where you also lived with your older sister, in share-houses with friends and with your grandparents and an uncle. Despite this, you had a good relationship with your older brother, and describe the victim as your “best friend” saying you did 'everything together' and that you felt protective towards him as he grew up, saying you would have done anything to protect him from harm.

37You were educated to Year 9 at Yarra Hills Secondary College but were expelled from school following the allegations that led to you being charged with sexual offending against two female students in 2013. Although you managed with school academically, you describe yourself as an “eccentric character” who was “weird” and struggled to make friends. You report being bullied “relentlessly” at school. During this period, you were also assessed as having symptoms of Autism Spectrum Disorder  and ADHD, although your mother was reluctant for you to take the medication prescribed for these disorders.

38You moved to another school, but after engaging in further sexual offending against a young female known to you in February 2014, you were expelled once more, thereafter undertaking distance education. You ceased all education following the death of your father.

39After leaving school, you enrolled in an electrical pre-apprenticeship through TAFE but did not complete this after your employer failed to record your hours of work. Since then, you have only had sporadic employment, working in carpentry and labouring positions. You were employed at Woolworths for a year prior to your arrest.

40In her report, Ms Cameron states that you report being introduced to pornography at the age of 13, and continued to watch online pornography until you turned 19. You frequently masturbated, describing doing so multiple times a day when you were bored. At the age of 19, you commenced your first intimate relationship with a woman you met at TAFE, a relationship that lasted, without incident, for two years. A second relationship in 2021 lasted 6 months.

41Ms Cameron reports that you have a history of substance abuse, with you smoking cannabis regularly from the age of 15. In your late adolescence, you also abused amphetamines and other illicit substances, such as MDMA. You disclosed using cannabis regularly during the period of this offending.

42In relation to the offending, Ms Cameron reports that you are “unable to provide any explanation or motive” for your offending. You denied being sexually aroused by your offending. More generally, you denied any sexual attraction to males, or to pubescent or prepubescent children. You told Ms Cameron you were willing to engage in offence-specific treatment to assist you to understand why you committed these offences against your brother.

43As stated, you were sentenced in 2014 for other sexual offending, the circumstances of which differ from this offending. This offending was committed when you were between 14 and 15 years of age. At the age of 16, you were sentenced to an 18-month Youth Supervision Order with a condition that you engage in youth-focused sex offence treatment. The sentence was imposed for offending against two 14–15-year-old females in February and May 2013, including for charges of rape, assault with intent to rape, committing an indecent act with a child and indecent assault. You were also sentenced for two rolled-up charges of rape committed in 2014 where the victim was another 15-year-old female student.

44After discussing this offending with you, Ms Cameron concludes that you display reasonable insight into the sexual offending against these three female victims which was driven by your poor 'social and interpersonal' skills, an inability to delay sexual gratification, and a sense of entitlement. In contrast, Ms Cameron assesses you have poor insight into the motivations leading you to sexually offend against your brother. She considers that you minimised the seriousness of your offending against your brother which perpetuated your conduct, in addition to the fact your offending was not detected for so long.

45Following psychometric testing, Ms Cameron diagnosed you with a range of mental health and cognitive disorders including depression and anxiety, coupled with neurodevelopmental disorders, Autism Spectrum Disorder and ADHD. Ms Cameron concludes that your behaviours have also been compromised by “maladaptive responses” to trauma and stress in your life, including the development of a post-traumatic stress disorder following your father's death.

46Although Ms Cameron considers you have no 'self-awareness or insight' into the motivations underpinning your offending behaviour, she expresses the opinion that you demonstrate significant, and genuine remorse for your offending against your brother and assesses you as willing to engage in treatment.

Matters in mitigation

47Having discussed the objective gravity of the offending, I turn now to discuss other matters relevant in mitigation of your sentence.

Guilty plea and remorse

48The most important of these is your guilty plea. Although yours was not an early plea and followed pre-trial hearings in this court during which a number of witnesses were questioned, your plea still has significant utilitarian value. By pleading guilty to these offences prior to the commencement of the special hearing, you saved the victim the ordeal of reliving these events in court and from being cross-examined as to his account. In the circumstances of this case, this fact is significant. Your guilty plea also saved the court and the community the time and expense associated with a trial, a benefit that is heightened at a time when the impact of the COVID-19 pandemic continues to cause delays in the criminal justice system.

49By your plea you accept responsibility for your conduct. I accept that you have expressed sincere remorse for your actions in your discussions with Ms Cameron, perhaps best illustrated by the fact the timing of the plea was intended to avoid the need for the victim to give evidence.  You told Ms Cameron that you now realise your offending was 'the worst thing' you could have done to your brother, saying you understand you will receive a significant sentence for your crimes, but that you cannot undo the harm you have caused. Notwithstanding your remorse, I cannot conclude that it is accompanied by insight into the motivation for your offending. However, this does not detract from the benefit of your guilty plea and has greater bearing on my assessment of your prospects of rehabilitation.

Youth

50    Your youth at the time of your offending is also highly relevant to the sentence to be imposed. The majority of your offending was committed at a time when you were between 16 and 17 years, 8 months of age. The law regards any offender under the age of 18 as a child. In his submissions, Mr Bloeman provided a helpful timeline of the offending to highlight the fact that at the commencement of the date ranges for the offending that occurred in Mount Evelyn between January 2019 and 4 April 2021, you were 20 years, 8 eight months old, an age where the law still classifies you as a young offender.

51The principles that apply when sentencing an offender as an adult for offences committed as a child were distilled by the Court of Appeal in Sherrit v The Queen, where it observed:[3]

'…common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the applicant's moral culpability, must take into account that what was done was done as a child; and that, even absent statutory sanction, general deterrence will ordinarily have a lesser role to play in the sentencing of children than in the case of adults.'

[3]Sherrit v The Queen [2015] VSCA 1, at [34]

52Similarly, the well-established principles that apply when sentencing young offenders, as set out in The Queen v Mills[4] and Azzopardi v The Queen[5] recognise that 'young offenders may lack the degree of insight, judgement and self-control that is possessed by an adult' or 'may not fully appreciate the nature, seriousness and consequences of their criminal conduct'. Your immaturity at the time of this offending is commented upon by Ms Cameron who, after discussing the psychological and neurological immaturity of young offenders, states:

“… immaturity in young adults can be attributed to cognitive and psychological differences in individuals, such as impaired understanding of responsibility and consequences, increased impulsiveness, disproportionate emotional arousal, and deficiencies in decision-making abilities, relative to their adult counterparts. [He] was aged 16 to 22 at the time of the most recent offending, and his psychological immaturity, which was already at a lower baseline due to his ADHD and ASD, is relevant when considering his actions and thought processes.”

[4]R v Mills [1998] 4 VR 235

[5]Azzopardi v The Queen [2011] VSCA 372, at [34]-[36]

53Generally, rehabilitation is a sentencing consideration to be given prominence in the sentencing synthesis for young offenders, with general deterrence to be afforded less weight than that applicable to similar offending by older, presumably more mature adults.

54I accept that your youth, particularly during the early periods of your offending, mean that general deterrence has a lesser role to play, even having regard to the serious nature of that offending. However, the fact this offending continued up until your early twenties, means that general deterrence still has a role to play in your sentence. More significantly, the fact it occurs so soon after you were sentenced, albeit as a child, for serious sexual offending, there is a need for the sentence to deter you specifically from future sexual offending.

Delay

55In line with the authority of Sherritt, it was submitted that had your offending been detected earlier, some (but not all) of your offending could have been sentenced under the more 'benevolent' provisions of the Children, Youth and Families Act 2005.[6] For instance, general deterrence has no role to play in the sentencing of child offenders.[7]

[6] Sherrit v The Queen [2015] VSCA 1, at [33]

[7]CNK v The Queen [2011] VSCA 228 at [7]

56On your behalf, it is submitted the delay resulted in this opportunity being lost to you, and that this should be recognised by appropriate orders for concurrency for the offences committed when you were under 18. I accept that the sentence to be imposed for these offences should give proper weight to your age at the time they were committed. However, I consider the relevance of delay to your sentence also needs to be balanced against the fact you took steps to conceal the offending, including threatening the victim that you would take “his life and yours” if he told anyone about your sexual abuse. This is not a situation where you bear no responsibility for the delay associated with this matter.

57To be clear, your youth continues to be relevant to the sentence to be imposed and operates to some extent to reduce, but does not extinguish, the need for the sentence to operate to deter others and to clearly denounce your conduct.

Mental health

58A significant aspect of your plea hearing related to the mitigating effect of your diagnosed mental health disorders and impaired cognitive functioning as a result of your Autism Spectrum Disorder and ADHD.

59In certain circumstances, the law recognises that impaired mental functioning may operate to reduce an offender's moral culpability for the offending, and correspondingly reduce, or even eliminate, the need for the sentence to operate as a general deterrent to others. The application of these principles, derived from the case of Verdins,[8] usually depends upon the court's finding as to the nature and severity of the mental health condition and importantly, any connection between the condition and the offending behaviour. [9]

[8] R v Verdins [2007] VSCA 62

[9]DPP v O’Neill [2015] VSCA 325 at [74]

60If the mental impairment existed at the time of the offending, it must have some 'realistic connection' with the offending; or have 'caused or contributed' to the offending.[10] It must be established that the mental impairment affected the offender's ability 'to appreciate the wrongfulness of the conduct'; or to make calm and rational choices or to think clearly at the time of the offence.[11]

[10] Ibid

[11] Ibid

61Mr Bloeman submits that your mental health conditions combined to predispose you to greater impulsivity, non-consequential thinking and underdeveloped critical thinking. These submissions are supported by the following observations of Ms Cameron:[12]

'[His] offending appears to have been predisposed by his upbringing, the development of internal scripts and cognitive distortions, and vulnerabilities from his neurodevelopmental disorders including Autism Spectrum Disorder and Attention Deficit and/or Hyperactivity Disorder. He presents with a pattern of social, communication and emotional regulation impairments that have persisted since childhood…As a result of his ASD and social deficits, [he] has been socially withdrawn and experienced difficulty navigating intimate and non-intimate relationships….His ADHD also predisposed him to impulsivity, non-consequential thinking and underdeveloped thinking.'

[12] Exhibit 1 at page 18, [131]

62I am satisfied that your impaired cognitive functioning, particularly your inability to regulate your emotions and impulsivity would have contributed to your offending behaviours. Ms Cameron also assesses that your Autism Spectrum Disorder also predisposes you to minimise the harm caused by your offending.[13] The principles in Verdins operate to reduce, to some degree, your moral culpability for your offending.

[13] Ibid, at page 20, [138]

63As highlighted by the prosecution however, there is evidence you were aware of the wrongfulness of your conduct, by threatening the victim if he told anyone about the sexual abuse. I accept that your impaired mental functioning is relevant to the extent it impaired your decision-making capacity, particularly in predisposing you to act impulsively. However, I am not satisfied your impairment was such that you were not aware that your conduct, over many years, was seriously wrong. Your impaired mental processes have bearing on your responsibility for your behaviours, but are also relevant to your prospects of rehabilitation, to which I now turn.

Prospects of rehabilitation

64Since being in custody, you have taken the opportunities available to you to engage in treatment courses, including 'Alcohol and me' and 'Cannabis and me'.  Other courses have been limited due to your status in protective custody.

65After being sentenced in 2014 to a Youth Supervision Order, you completed the Male Adolescent Program for Positive Sexuality (MAPPS program) as a component of that order. Ms Cameron was unable to obtain any reports regarding the efficacy of your engagement in this program. However, it is clear you continued to offend against the victim in this matter notwithstanding your participation in the MAPPS program.

66Ms Cameron has assessed you as a high risk of future sexual offending, based on evidence of 'extreme minimisation of sexual violence', ongoing lack of insight and in Ms Cameron's opinion, emotional dysregulation that may perpetuate your risk of sexual recidivism. As to the factors that elevate your risk of future offending, Ms Cameron highlights the 'chronicity, diversity, escalation, psychological and physical coercion' associated with your sexual offending, in addition to your mental health issues and 'extremely poor self-awareness and coping skills'.

67Whilst you have indicated a preparedness to engage in specialist sex offender treatment and a desire to better understand the motivations of your offending, all of which is positive, at present I remain guarded about your future prospects. I cannot be confident, that if the circumstances or opportunity presented again, you would not re-offend. Much will depend on your engagement in specialist treatment.

Burden of imprisonment

68I am conscious that imprisonment will be especially hard for you for a number of reasons.

69First, as highlighted in the report of Ms Cameron, you are presently experiencing severe levels of depression, anxiety and stress. Your Autism Spectrum Disorder and ADHD exacerbate your existing difficulties with social skills, and in regulating your emotions. You have irretrievably lost any future relationship with your two brothers. Given the nature of these charges, you are detained in protective custody. Other than the support you now receive from your mother, you have no other close family or the support of friends. This will make your time in prison, noting it is your first experience of custody, all the more isolating and difficult.

70Secondly, in her report, Ms Cameron expresses the opinion that imprisonment will 'likely weigh more heavily on [you] than a person without [your] mental health vulnerabilities'. She assesses your depressive symptoms and PTSD may become more pronounced in a prison environment due to your 'lower threshold' to stress than others without these conditions, thereby enlivening limb 5 of the principles in Verdins in some moderation of your sentence.

71Thirdly, the first few months of your time on remand in particular were hard as they coincided with the restrictive conditions imposed in custodial settings to respond to the pandemic, including periods in isolation and limits on programs.

72I have taken these matters into account in sentencing you. In particular, I accept that the symptoms associated with your Autism Spectrum Disorder, ADHD coupled with your diagnosed depression, anxiety and PTSD will make your time in custody a difficult one.

Other sentencing considerations

73In cases such as these, the sentencing principles of general deterrence, just punishment, and denunciation are ordinarily considerations of great weight. For the reasons given, I accept these considerations are moderated to some extent by your youth, particularly in respect of charges 1-4 which were committed prior to you turning 18, and the impact of your mental health condition, ASD and ADHD on your offending behaviours.

74However, having regard to the nature and extent of your sexual offending, including your prior history of serious sexual offending, the need for the sentence I impose to protect the community is highly relevant to my sentence. This is particularly so having regard to Ms Cameron's assessment that you pose a high risk of sexual offending into the future. The sentence I impose must specifically deter you from future sexual offending.

75As a young man, the sentence must also be structured to afford the best prospects of promoting your future rehabilitation. You have expressed a desire to engage in offence-specific treatment which is to your credit. Engaging in treatment programs, such as the specialist sex-offender treatment program recommended by Ms Cameron, will be important to address the level of risk she identified, and to enhance the protection of the community which may be achieved by your rehabilitation.

Other sentencing considerations

76The offence of sexually assaulting a child under 16 contrary to s49D(1) of the Act (charge 5) falls under the standard sentencing scheme that applies to offences committed after 1 February 2018. The standard sentence for this offence is 4 years' imprisonment.

77The standard sentence is a 'legislated guidepost', no more.[14] The standard sentence for the offence is the sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.[15] It does not take into account the other matters that remain highly relevant to the sentencing discretion, including the mitigating effect of your plea, youth and mental health.

[14] Brown v The Queen [2019] VSCA 286, at [25]

[15] Section 5A of the Sentencing Act 1991.

78When considering current sentencing practices for similar offences, the court may only consider sentences imposed since the imposition of the standard sentencing scheme for a standard sentence offence.[16] Whilst considering current sentencing practices, I must be careful to assess these having regard to the maximum penalty that applied to the offences at the time of the offending.

[16] Ibid, Section 5B (2)(b)

79Both the prosecution and defence referred me to the case of Holland (a pseudonym) v The Queen[17], where the offender was sentenced to 30 months' imprisonment for two charges of incest against a sibling, including a representative charge of penile-vaginal penetration representing two occasions of offending over two years and a rolled-up charge of incest committed on the one day. The victim in that case was the offender's sister, who had an intellectual disability. The offending took place between 2012 and 2014 when the victim, born in 1992 was between 20-22 years of age and the offender, born in 1990 was 22-24 years of age. The maximum penalty for the offence was also 5 years' imprisonment at the relevant time.

[17]Holland (a pseudonym) v The Queen [2018] VSCA 241

80In my view this case is of less use in discerning a sentencing range due to the very different circumstances that attended that offending, notably where both the offender and the victim were adults, although I accept the victim's vulnerability was heightened by her intellectual disability.

81In the case of DPP v Hutchinson (a pseudonym),[18] the offender was 16 at the time he performed a number of indecent acts with his half-sisters, both aged under 16. He was sentenced to a three year community correction order for three charges of committing an indecent act with a child under 16 and other child pornography offences. The Court of Appeal described a range of 'powerful mitigating circumstances' that otherwise moderated what was 'undoubtedly very serious' offending, including the fact the offender was only a little over 16 when he committed the offences in relation to his half-sisters.[19] Further, the court noted that the offender had himself been the victim of sexual offending perpetrated by an adult and he had experienced a traumatic childhood.

[18][2018] VSCA 153.

[19]

82Again, the circumstances here differ from those in Hutchinson, where the offending was limited to an occasion when the offender was 16. Here your offending spanned between the time you were 16 until you were in your early 20s. The principles enunciated in Hutchinson do, however, have some application to the offending committed when you were under 18.

83I have also had regard to other decisions provided by the prosecution which, whilst not comparative, were provided as assistance in the sentencing principles to apply when sentencing for the offence of incest against a sibling. Ultimately, each case turns on its own facts.

84The standard sentencing scheme also prescribes the non-parole period to be imposed in relation to a standard sentence offence, or as here, in respect of the total effective sentence which incorporates a standard sentence offence. Pursuant to s11A(4) of the Sentencing Act 1991, the relevant non-parole period is at least 60 per cent of the relevant term of imprisonment, unless it is in the interests of justice not to do so.

85The serious offender provisions also apply to these charges, although no regard is to be had to your prior conviction for sexual offences as you were under the age of 21 when you were sentenced for these offences. By reason of the serious offender provisions, once sentenced to a term of imprisonment on Charges 1 and 2, you stand to be sentenced as a serious sexual offender for the remaining charges. In doing so, the protection of the community is considered the primary sentencing purpose and pursuant to s6E of the Sentencing Act 1991, the term of imprisonment imposed for these offences must be served cumulatively upon the sentence imposed on the other charges, unless the court otherwise directs.

86On your behalf, it was conceded that a sentence of imprisonment with a non-parole period fixed is the only appropriate sentence. However, it was submitted that your youth at the time of the offences committed before turning 18, should be recognised by imposing wholly concurrent sentences with respect to charges 1-4. Ultimately, I accept that a significant degree of concurrency is warranted on those charges, however in considering the amount of concurrency, I must have regard to the serious offender provisions of the Sentencing Act 1991, the legislative requirements of which cannot be ignored.

Sentence

87Balancing the matters to which I have referred, whilst having regard to the maximum penalty for each of the offences, particularly the maximum penalty of five years for the offence of incest and guided by the standard sentence for the offence of sexual assault of a child under 16, I sentence you as follows:

88On Charge 1 – indecent act with a child under 16 – you are convicted and sentenced to 14 months' imprisonment.

89On Charge 2 – indecent act with a child under 16 – you are convicted and sentenced to 14 months' imprisonment.

90On Charge 3 – incest with a sibling – you are convicted and sentenced to 18 months' imprisonment.

91On Charge 4 – indecent act with a child under 16 – you are convicted and sentenced to 16 months' imprisonment.

92On Charge 5 – sexual assault of a child under 16 – you are convicted and sentenced to 2 years, 6 months' imprisonment.

93On Charge 6 – sexual penetration of a sibling – you are convicted and sentenced to 1 year, eight months' imprisonment.

94On Charge 7 – sexual assault of a child under 16 – you are convicted and sentenced to 2 years, six months' imprisonment.

95On Charge 8 – sexual assault of a child under 16 – you are convicted and sentenced to three years' imprisonment. This is the base sentence.

96I have imposed a sentence on each of the charges of sexual assault of a child under 16 that fall below the standard sentence, having regard to the sentencing benefit that attaches to your guilty plea, to your youth and impaired mental functioning.

97I order that three months of the sentence imposed on Charge 3, 2 months of the sentence imposed on Charge 4, 3 months of the sentence imposed on Charge 5, six months of the sentence imposed on Charge 6 and 5 months of the sentence imposed on Charge 7 be served cumulatively upon the sentence imposed on Charge 8 and upon each other. All other sentences are to be served concurrently.

98This gives a total effective sentence of 4 years, 7 months' imprisonment. I fix a period of 2 years, 9 months' imprisonment before you are eligible for parole.

99Pursuant to s18 of the Sentencing Act 1991, I declare 731 days of pre-sentence detention to be reckoned as already served under the sentence I have imposed.

100I declare that you are sentenced as a serious sexual offender on Charges 3-8 and direct that this be entered into the record of the court.

101Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you not entered a plea of guilty to these charges the sentence I would otherwise have imposed is a sentence of six years imprisonment, with a non-parole period of four years' imprisonment.

102Mr Cleve, your offending attracts the provisions of the Sex Offenders Registration Act 2004 and you are required to comply with the reporting obligations under that Act for life. You will receive a document at the conclusion of this hearing which details your obligations under that Act and which you will be required to sign.

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