Director of Public Prosecutions v Coombes (a pseudonym)

[2018] VCC 389

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

CAMERON COOMBES (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	23 March 2018
DATE OF SENTENCE:	23 March 2018
CASE MAY BE CITED AS:	DPP v Coombes (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 389

REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – sexual penetration of a child under 16 – young offender – sentenced as an adult for offending committed as a child – delay in laying charges – good rehabilitation prospects – adjourned undertaking without conviction. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Karamicov	John Cain, Solicitor for Public Prosecutions
For the Accused	Ms A. Hancock	Victoria Legal Aid, Geelong

HER HONOUR: 

1Cameron Coombes,[1] you have pleaded guilty before me to one charge of sexual penetration of a child under 16 contrary to s.45 of the Crimes Act 1958 as amended by the Crimes (Amendment) Act 2000.

[1]Cameron Coombes is a pseudonym.

2The offence is objectively serious and that is reflected in the maximum penalty that is prescribed by Parliament and that is, ten years' imprisonment.

3This offence is predicated on the presumption of harm which arises from underage sex.  Notwithstanding it was consensual sex, because of the age of the victim in this matter, it is considered to be a criminal act.

4The offending has had an impact upon the victim.  In her Victim Impact Statement declared 4 September 2017, she states that she was treated for some depression and treated with medication after the event.  She stated further that she was not hurt or injured but felt very low and horrible. 

5I will proceed to sentence you on the basis of the summary of the prosecution opening. I do not propose to read it in full. Briefly, the circumstances are the victim was aged 14, at the time of the offence, she was living at an out of home care facility under the auspices of the Department of Health and Human Services.  She was subject to an Interim Accommodation Order.  You were then aged 17 and you were living at home with your mother nearby.  You were introduced to the victim on 9 July 2014 and following a series of text communications, she attended the unit where you were and stayed with you overnight.  She had earlier left the accommodation without being detected. You had penile-vaginal sex with the victim.  You were aware at the time she was aged 14.  The intercourse was agreed between you two but because she was a child, she could not legally consent to the act and hence you have been charged with Charge 1, sexual penetration of a child under the age of 16.

6Subsequently, the people who were responsible for the victim found her missing from her bedroom and police were contacted.  At approximately 3.45 pm on 10 July 2014, she was located at the unit in the presence of you and two others.  She was then taken to the Horsham police station before being reunited with support workers.  She disclosed to one support worker, Angela Savage, that you had had sex with her and on 11 July 2014, she made a further disclosure to a different child protection worker, Sharon Quigley, that you had had sex with her.

7Police recorded a Visual And Recorded Evidence (VARE) statement on 17 November 2014 during which she detailed what occurred on that evening. She repeated that she had had sex with you and that you were aware that she was aged 14 at the time.  You were interviewed by police on 29 December 2016 in respect to this offence at the Horsham police station.  You were not charged until 7 July 2017.

8In this case, there has been a significant delay between the making of the VARE on 17 November 2014 and the record of interview being conducted upon you on 29 December 2016 and the charge being laid on 7 July 2017.  That is significant given your age, in that you were charged at a time when you were no longer capable of being dealt with in the Children's Court, and you are now to be sentenced as an adult for offending committed as a child. 

9This has had several consequences and importantly, the consequences that can be identified are, that the statutory framework for juvenile justice compels the court sentencing a young offender in the Children's Court to adopt the offender-centred or welfare approach rather than a justice or punishment approach which is applied for adult offenders, and secondly, there is a different therapeutic outcome in terms of the types of orders made by the Children's Court in the circumstances. In the Children’s Court the emphasis is on the primacy of rehabilitation and also therapeutic measures being put in place directed at dealing with the specific offending behaviours. Section 362(1) of the Children, Youth and Families Act 2005 specifically excludes general deterrence in the consideration of sentencing of children and the sentencing framework provided by that section provides in determining which sentence to impose on a child, the court must as far as practical have regard to a number of factors, one of which is the need to minimise the stigma to the child resulting from a court determination. Yet another is the suitability of the sentence to the child, and if appropriate, the need to ensure that the child is aware that he or she must bear a responsibility for any action by him or her against the law.

10The factors that are set out are backed up by a lot of research.[2]  It is accepted generally that there is an issue in terms of immaturity of young people who appear before the Children's Court and the need, in the interests of the community and young persons concerned, to endeavour to divert them from engagement in anti-social conduct at that early stage of their lives.

[2]See Webster (a pseudonym) v The Queen [2016] VSCA 66; 258 A Crim R 301.

11Those considerations can and do lead to dispositions which would be regarded as entirely inappropriate in the case of an older and presumably more mature individual.  But clearly there is a body of established evidence that does provide empirical support for a very different approach being given to sentencing young offenders and it is related to cognitive capacity, psychosocial maturation as well as the fact that there are social and emotional differences between adolescents and adults that continue well beyond mid-adolescence and have profound effects on decision-making.

12Currently you are to be dealt with as an adult for offending that was committed as a child.  Under the Sentencing Act, there are different principles that apply as set out in s.5.

13When pressed to seek an explanation for the delay, Ms Karamicov, in summary stated that there were operational reasons.  After the VARE was conducted with the victim, your investigation was triaged against other competing matters that were given priority.  Civilian witnesses were difficult to locate as they had been relocated to other areas. 

14I find that explanation does not justify the delay.  Here, the criminal act was documented in the victim's VARE and there was available to the prosecution evidence of complaint to the two workers, Angela Savage and Sharon Quigley so that the police were in a position to lay charges at an earlier time, and had they done so, you would clearly have been dealt with in the Children's Court and the likelihood is that you would have received a disposition that did not involve custody nor the imposition of a conviction.

15Such a delay did not occur with respect to the laying of other charges.  You do not have any prior criminal history, however you were charged with three charges of sexual penetration of a child under 16 and one charge make or produce child pornography in respect to events that occurred between 11 March 2014 and 14 March 2014. 

16I was informed that those charges involved you having sex with a person who was then described as being your girlfriend.  Your relationship had been conducted for one month.  She was then aged 14 and you were aged 16.

17You were charged by Horsham police in respect to that offending on 27 May 2015.

18That was subsequently dealt with by the Children's Court Horsham on 12 October 2015 where, without conviction, you were ordered to serve a Youth Supervision Order for six months on the condition that you complete a Male Adolescent Program for Positive Sexuality known as the MAPS program.  Ultimately you successfully completed both the Youth Supervision Order and the MAPS program. 

19The MAPS program is an intensive group treatment program for adolescent males following the finding of guilt in respect to a sexual offence.  The orders are supervised by the Department of Health and Human Services, Youth Justice and the Disability Forensic Unit and the primary goal for anyone who undertakes the MAPS program is to understand how they came to offend and to take responsibility for their offending, developing healthy relationships and preventing future offending and to assist young people to develop a belief system conducive to a non-offending life. 

20In support of the plea in mitigation, I received a report from Carla Lechner, consultant psychologist, whose report dated 2 March 2018 details your background history.  It is apparent that your background is one of disadvantage of some significance.  She states that you emanate from a history characterised by complex developmental trauma.  This has undermined the development of your self-esteem, the ability to form close and trusting relationships, and your sense of identity and belonging.  You report high levels of anxiety that also interferes with your capacity to engage in job-seeking and further vocational training. 

21She noted your background in relation to coming from a family where your parents could not care for you as a young child and you were placed in foster care at a very early age.  I do not propose to go into great detail in respect to your personal history. It is set out in the report.  It is noted that around the time of this offending, you had recently left foster care and you were adjusting to living with your mother with whom you did not have an effective child-parent relationship.  You were smoking cannabis and mixing with similarly disconnected youths. 

22You did understand the wrongfulness of your actions.  Ms Lechner considers that the offending does not appear to represent any deviant sexual interests.  She noted you have not been in any further trouble for your sexual behaviour and currently you present with a positive prognosis. 

23You are now living with a sister and her partner and two young children in Geelong.  You receive the Youth Support Allowance and for the future, you are keen to engage in employment but you have found the anxiety associated with this process hanging over your head too great such that you have not been able to complete any work qualifications.  She noted that you impressed as socially and emotionally immature at interview and that you were noticeably anxious.  She considered that you were easily overwhelmed by social and emotional factors that undermine your judgement and decision-making. 

24You presented as cognitively limited on account of your poor fluency and expressive skills and your intelligence is in the low average range.  She considers that indicates that your poor communication skills are more a function of anxiety. 

25She noted that you had completed the treatment in relation to the sexual offences in the past and that you do fully understand the wrongfulness of your actions.  She considered that the delay in the proceedings has been a matter that is extremely stressful for you and is a further contributing factor to your anxiety. 

26I have had regard to all the matters put in mitigation on your behalf.  I accept that you entered a plea of guilty at the earliest stage, that as a consequence you spared the victim the further trauma of having to come to court to give evidence on your trial and be cross-examined.  You saved the court time and resources.  You therefore have facilitated justice.  There is real utility in your plea.  Your sentence will be discounted accordingly.  I am also of the view that the plea of guilty is evidence of genuine remorse.

27You are now a 20-year-old man who is soon to turn 21 in April 2018.  You have a future ahead of you.  Your rehabilitation is a very important sentencing factor.  You were a child offender at the time of committing the offence but you are to be sentenced under the Sentencing Act where you are considered to be a youthful offender.

28Your prospects of rehabilitation I consider to be very good, having regard to the fact that you have not committed any further offences since this matter and also you have successfully completed the Youth Supervision Order and the MAPS program.

29Importantly, what Ms Carla Lechner says is that you do have a good understanding that what you did was wrong and that your offending does not appear to represent any deviant sexual interests.  You do present with a positive prognosis and you are now currently in an age-appropriate relationship with your girlfriend, Tessa.[3] 

[3]Tessa is a pseudonym.

30I accept that your offending was a product of your social and emotional immaturity at the time of the offending rather than reflective of any deviant sexual interest.

31Given your youth, your continued rehabilitation is important and therefore, I have come to the conclusion that a disposition that does not involve the imposition of a conviction is appropriate.  You are a person who presents with a personal history characterised by complex developmental trauma that has undermined your social and emotional development and I consider that that played a large role in your offending behaviour.

32In sentencing you, I have to have regard to the objectives of general deterrence.  Specific deterrence I consider to be of less importance having regard to your relatively young age and your positive prospects for rehabilitation.

33I have had regard to the remarks of Nettle JA, as he then was, in the case of R v Boland[4] where he says that in talking about what happens when a court has to sentence an offender as an adult for offending committed as a child, that where the offender has achieved a significant degree of rehabilitation and there has been no further offending, although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime and of the offender's moral culpability take into account that what was done was done as a child or as a person of immature years and not as an adult or person of greater maturity.[5]  Therefore general deterrence ordinarily has a lesser role to play in the sentencing of such persons and I have taken that into account so I have reduced your moral culpability and also reduced the need to emphasise general deterrence. 

[4]R v Boland (2007) 17 VR 350.

[5]Ibid 304 [16].

34In her sentencing submissions, Ms Karamicov sought a Community Correction Order with conviction having regard to the seriousness of the offending and the age and vulnerability of the victim.

35For the reasons that I have already articulated, I consider that such a disposition is out of all proportion having regard to the particular facts and circumstances of your case, the lengthy delay in the prosecution of your matter and the very real consequences that have flown in the circumstances of your case.  I accept that you have been greatly impacted by the delay but nonetheless through the course of the time that it has taken to have your matter dealt with by the court, you have acted in a more mature way and you have responded appropriately when ordered by the Children's Court to undertake the MAPS program and you have adhered to all the Youth Supervision Order conditions. 

36So in all those circumstances, I consider that you do show genuine rehabilitation prospects and I consider that the disposition I propose to impose is the one that is most appropriate to encourage you to continue along the manner in which you have now conducted your life and to offer the community the best protection for the future. 

37It is important that regard is had to the stigma that such a conviction would have for a young person such as yourself who has had such a deprived and disadvantaged background.  It is important that for the future, you are encouraged to seek employment, to seek to be productive and to be law-abiding. 

38Having regard to all the factors set out in s.8 of the Sentencing Act, I consider that a conviction in these circumstances is not warranted.

39The formal court order in respect to the charge, is that without conviction, you are placed on an adjourned undertaking for a period of 12 months with the condition that you be of good behaviour.  That is based on a finding of guilt. 

40In respect to the application for the forensic order, that is refused on the basis that such an order is not warranted in all the circumstances having regard to the particular history of this matter.

41I think that covers everything, doesn't it?

42MS KARAMICOV:  Yes, Your Honour.

43MS HANCOCK:  Yes, Your Honour.

44HER HONOUR:  All right, so we'll get Mr Coombes to sign the adjourned undertaking and then once that is signed, he is free to go. 

45MS KARAMICOV:  Did Your Honour want to consider the s. 6AAA decisions again?

46HER HONOUR:  Why do I have to?  It is not the imposition of a gaol term.

47MS KARAMICOV:  No, you don't have to.  I'm just raising it, that's all.

48HER HONOUR:  I'm not going to, no.

49MS KARAMICOV:  No.  As Your Honour pleases.

50HER HONOUR:  It's not appropriate.  All right, so hopefully, Mr Coombes, with this behind you now, you can move on with your life and I would encourage you to try and complete the certificate that you started.  You should look to the future now, all right?

51OFFENDER:  Yeah.

52HER HONOUR:  All right.  Thank you, we can adjourn.

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