Director of Public Prosecutions v Corra

[2015] VCC 388

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01636

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAYLEN CORRA (a Pseudonym)

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	17 February 2015
DATE OF SENTENCE:	26 March 2015
CASE MAY BE CITED AS:	DPP v Corra
MEDIUM NEUTRAL CITATION:	[2015] VCC 388

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:             Sentence – Plea of guilty – Sexual penetration of a child under 16
Legislation Cited: Sentencing Act 1991

Cases Cited:Boulton v R [2014] VSCA 342; R v Mills [1998] 4VR 235; R v Anderson (2013) 228 A Crim R 128; CNK v The Queen (2011) 32 VR 641. 

Sentence:Combination of imprisonment and Community Corrections Order – 6 months’ imprisonment combined with 2 year Community Corrections Order – Forensic Sample Order – Sex Offender Registration for Life – Declared a Serious Sexual Offender – S.6AAA Sentencing Act 1991 declaration

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr I. Exell	Solicitor for Public Prosecutions
For the Accused	Mr J. Fitzgerald	VLA

A pseudonym has been used to maintain the privacy of the victim in this matter.  Initials have also  been sued in relation to the victim and her family for the same purposes.

HER HONOUR:

1Jaylen Corra, you have pleaded guilty to three charges of sexual penetration of a child under the age of 16 years.  The offence has a maximum penalty of
ten years' imprisonment which reflects the seriousness with which Parliament regards this crime.

2You were 18 or 19 at the time of the offending and you are now 21.  The complainant was 12 years old at the time of the offending and is now 14.

3The victim is one of nine children. She met you when she was ten, through her older brother A who introduced you to the family.  You became friends with I, another sibling, and later worked at the same workplace as some of the complainant’s siblings.

4You were often at the victim’s family home and the victim saw you as a brother figure.

5Late one evening in October 2012, the victim was watching TV and was sitting on the couch on her own.  You entered the room and sat next to her, holding her hand.  You then tried to kiss her, putting your tongue inside her mouth but she did not reciprocate.  You then lifted the victim’s tracksuit pants and rubbed her vagina, saying "Do you like it? Do you want it?"  The victim did not know what to say or do.  You then inserted one finger and then another finger, according to the victim, "pretty far" in the victim’s vagina.  This gives rise to Charge 1.

6You then removed your fingers from the victim’s vagina and put them into her mouth.  You asked her to go outside with you but she refused.  You walked off and were upset by this.

7The incident made the complainant feel scared of boys and she blamed herself for what had happened.

8At about midday on a Saturday or Sunday in June 2013, you were at the victim’s home.  You offered to buy a SIM card for the victim’s new phone.  You told her 15 year old brother that he could not come with you and the victim.  You drove the victim to a nearby service station.  Whilst driving you rubbed the victim’s leg and vagina with your hand.

9The victim stayed in the car while you went to the service station.  You returned to the car saying that there were no SIM cards available.  You drove away from the service station then pulled over to the side of a road.  You and the victim went to the back of the car.  You removed your own and the victim’s pants.  You knelt behind the victim and inserted your penis into her vagina for about a minute.  This gives rise to Charge 2.

10You then inserted your penis into the victim’s anus, "going in and out" for about five minutes.

11You held the victim on the hips and said "Do you like it?"  You ejaculated into the victim’s anus.  The anal penetration gives rise to Charge 3.

12During this episode, the complainant was scared of you and she was in pain.  She later said that the offending made her feel "gross and disgusting.’  You took the complainant home and told her not to tell anyone.

13In September 2013, the victim disclosed your offending to a girlfriend of one of her brothers and she later told her mother and siblings.

14You took part in a record of interview with police on 21 October 2013 and made fairly frank admissions, which is to your credit, although you also sought to minimise your conduct.  You said that you had done some stupid things with the victim and you told police about what you had done.  You said that you had stopped because you felt bad, knowing that it was the wrong thing to do because of the victim’s age and because she was your best friend’s sister.

15You said that you offered to take the victim for a drive to buy a SIM card for her phone and you touched her on the leg.  You said that you kissed her and took her pants off.  She was on her stomach and you were behind her.  You said that you penetrated her anus with your penis but not for minutes.  You said that you asked her if she was all right.  You said that you did not ejaculate inside her and that you did not wear a condom.  Afterwards, you and she returned to her house.  You said that you kissed her without using your tongue and digitally penetrated the complainant's vagina when at her Lysterfield home in 2013 while she was watching a movie in the lounge room.  You asked if she was all right.  You denied penetrating her vagina with more than one finger or with your penis.

16You said that you and she agreed not to tell anyone about the offending.  You said that you did not think the victim really knew what she was doing. 

17Each of the charges is aggravated by the fact that you were a trusted person in that family household.  You were seen by the complainant as being like a brother to her but you grossly breached that trust.  You were about six years older than the complainant, which is a significant age gap, although I understand that you were and are somewhat immature.  Your offending in respect of Charge 1 is further aggravated by the fact that it took place in the victim’s own house, a place where she was entitled to feel safe.

18In respect of the second incident, there was a crude level of pre-planning in that you told the complainant’s brother he could not come with you.  You did not wear a condom which is an aggravating feature in respect of Charge 2 in that you exposed the complainant to pregnancy, albeit that you did not apparently ejaculate at that stage, and it is an aggravating feature in respect of Charges 2 and 3 in that you exposed the complainant to sexually transmitted diseases.  In attributing appropriate weight to this second aspect, I have factored in that you were not sexually experienced yourself.  It is a further aggravating feature in respect of the second incident that you swore the victim to secrecy, although you did not make any threats in this respect as often is the case in matters like this.  On the other hand, there is an absence of violence or threats which one sometimes sees in offending of this type, and although the age gap was fairly wide between you and the victim, your level of immaturity and intelligence appears to have been somewhat below that of an average 18 or 19 year old.  I am a little concerned as to your report to Mr Cummins that you believed the complainant was consenting and that she was legally entitled to consent to your conduct.  This is somewhat at odds with you swearing the complainant to secrecy and with what you told the police about knowing that what you were doing was wrong because of the complainant’s age.

19Your offending is deserving of a punishment which is just in all of the circumstances and must be denounced.  I must also give strong weight to general deterrence in a bid to deter others from behaving as you have.

20The impact to the victim has been profound, and it is a matter which is relevant to sentencing you.

21The victim’s  mother noticed a change in her behavior in about October 2013, including angry outbursts and becoming withdrawn.

22In her VARE, the complainant said that the offending had caused her confidence to slump that she had become withdrawn and had tried to hurt herself.  In October 2013, the complainant was admitted to hospital after she disclosed that she had taken excessive quantities of Paracetamol one week earlier.  She has also cut herself and burnt herself to take the pain away.  Medical staff noticed healing superficial lacerations on the victim’s forearm.  The complainant’s victim impact statement also refers to the complainant’s self-harm attempts, her sleeplessness and feelings of isolation and fear.  Your offending has impacted on every facet of her life including her inability to attend social occasions and absences from school.  These are the very concerning and disturbing effects that your criminal conduct has had upon the life of a young girl who is entitled to have a happy, innocent childhood but you saw fit to take this from her for your own selfish purposes.

23I was told by your counsel that you had never enjoyed a wide circle of friends, so that when you became friends with I and were introduced to his family, the family became a significant part of your life.  Your offending has meant that you have lost these people, and so you are now more isolated.  This is a punishment which you have invoked by your offending but it is something which I factor in when sentencing you.

24I take into account your background.  You are 21 years old and living with your parents and sisters in an outer suburb of Melbourne.  You work on a factory line at a business which makes cubby huts and you enjoy your work.  For obvious reasons, after your offending was discovered you left the job where you worked with some of the complainant’s siblings.

25You do not abuse alcohol; nor are you a drug user, which is somewhat unusual compared to many others who come before the Courts.  You grew up in a loving and supportive household.  However, you have told your parents very little about the charges and Court proceedings to the point where they did not attend the plea hearing as they did not know about this until the morning it was to take place.  Understandably, this was a most distressing phone call.  As I said at the time, it is most important that you gain the full support of your parents by informing them as to what is going on.  Your workplace does not know about the offences either.

26You were not a good student and had a tough time at school.  You were targeted and bullied at primary school because you were overweight.  You left secondary school after finishing Year 10, then transferred to Berwick Technical School where you completed Year 11 and a plumbing
pre-apprenticeship.  You then left school.  I understand that you struggled academically and on occasions you needed remedial help.  You commenced an apprenticeship with a company in the mechanical services field with a specialisation in air conditioning, but after two years you were forced to abandon this training due to a lack of work being available.  Only three or four months later, you commenced work at the same company as the victim’s siblings, leaving in September 2014. You then obtained work in your current occupation.

27When you were in your teens you played football for a local team but you no longer pursue any form of physical exercise.

28It appears from the expert material tendered on your behalf that you do not have a pedophilic or sexually deviant disposition, but rather you were immature and sexually inexperienced at the time you committed the offences.  It would also appear that you were, and still are, laboring under some cognitive deficits.  Dr Zimmerman said that it is likely that you have impaired cognitive functioning, "possibly in the low-borderline range." However, you knew very well that what you did in relation to the offending was wrong, which you admit in the record of interview.

29You have no prior or subsequent convictions.  I accept that you are of otherwise good character.  Some of the things that you said to Mr Cummins reflected rather poor insight into your offending. He was of the view however that you presented a low risk of re-offending after conducting an assessment of you.  This is echoed in the pre-sentence report provided by Community Corrections.

30In your favour, you pleaded guilty at a relatively early stage in view of the stage at which you obtained the benefit of representation.  A contested committal hearing was not conducted, so you have saved the witnesses, especially the victim, the time and trauma of giving evidence and you have saved the community the time and expense of contested proceedings.  In the circumstances I allow for a discount which is not insignificant in the circumstances.  I am also satisfied that your pleas of guilty manifest remorse, which was also conveyed to the police in the record of interview.

31In view of your preparedness to admit guilt, your remorse, your solid family support and good work ethic as well as your lack of prior or subsequent convictions and lack of mental health issues, I find that your prospects of rehabilitation are very good, and I need only place minimal weight on specific deterrence and protection of the community.

32I take into account that any sentence of imprisonment imposed by me would be your first, and that in view of this, your current depressive symptoms, your apparent cognitive difficulties and personality traits, time in gaol would be harder for you than for someone without these attributes.  I also factor in the expert evidence that your depressive symptoms would be likely to worsen in a gaol setting.

33You are still a young man and while your offending is serious, this is not a case where the need to maximise your prospects of rehabilitation must completely give way to the promotion of other sentencing considerations such as punishment, general deterrence and denunciation.  It is a great pity that you missed the chance to be assessed for suitability for a youth justice centre disposition, which may well have been the most appropriate sanction in your case.

34On 22 December 2014, the Court of Appeal, comprising a Bench of five handed down the decision of Boulton v R [2014] VSCA 342. It is a guideline judgment, the first ever of the Court of Appeal, and it is in respect of the imposition of Community Corrections Orders. Obviously, I am bound to follow that judgment, which, as I have said, is the first and only guideline judgment handed down by the Court of Appeal. The Court said that the Community Corrections Order (hereafter CCO) option dramatically changed the sentencing landscape and it was now open to a sentencing court to choose a disposition enabling "all of the purposes of punishment to be served simultaneously in a coherent and balanced way, in preference to… (imprisonment) which was said to be 'skewed towards retribution and deterrence.'"[113].

35A little later on the Court said:

"In short, the CCO offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender and of those who are dependent on him/her.’ The Court quoted the former A-G, who said that the community corrections order "is intended to be available in serious cases where an offender may be at risk of receiving an immediate custodial sentence, but the court considers that immediate custody is not necessary to fulfill the statutory purposes of sentencing given the range of options provided by a CCO."[115-116]

36The Court said that a CCO could serve all of the purposes of punishment even in quite serious cases.  The Court said that ‘the challenge for sentencing courts in the early years of the CCO regime will be to re-examine the conventional wisdom about the types of offending which ordinarily attract a term of imprisonment." [103] It went on to say that it was essential to conduct such a re-examination "if the CCO was to fulfill its potential as a sentencing option in accordance with the legislature’s clearly expressed intention." [103]

37In a comparison between gaol and CCOs, the Court observed that "…imprisonment is often seriously detrimental for the prisoner, and hence for the community." [108]. The Court observed that programs such as the sex offender treatment program were rationed and were often unavailable to those serving short sentences. The Court also observed that the various aspects of prison life could well increase the chances of a prisoner re-offending upon being released. The Court observed that such a disposition, that is, a community corrections order, could also address general deterrence but that it was the sentencing judge’s task and that of the government to effectively communicate to the community as to how a community corrections order operates punitively in any given case. I assume from this that the Court of Appeal would also have such a task in cases where they saw fit to impose a CCO on appeal.

38The Court said that there would be cases where, after engaging in the deliberation now required by s.5(4C) Sentencing Act 1991, certain sentencing purposes such as just punishment, denunciation and/or deterrence could not be sufficiently served by a CCO, even with onerous conditions. In the context of discussing the availability of combining a CCO with a term of imprisonment, the Court said "Consistently with the principle of parsimony, the Court would then impose the shortest term of imprisonment consistent with the achievement of those purposes." [140]

39The Court of Appeal specifically referred to young offenders in the course of its guideline judgment, citing with approval the principles set out in R v Mills [1998] 4VR 235 at 241. These are as follows:

(i) Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.

(ii) In the case of a youthful offender rehabilitation is usually far more important than general deterrence.  This is because punishment may in fact lead to further offending.  Thus, for example, individualised treatment focusing on rehabilitation is to be preferred.  (Rehabilitation benefits the community as well as the offender.)

(iii) A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s.5(4) of the Sentencing Act 1991.)

40The Court of Appeal in R v. Boulton went on to cite R v Anderson (2013) 228 A Crim R 128, saying it is "a cardinal principle of sentencing law" that, when a young offender is to be sentenced, the sentencing disposition should be tailored so far as is possible consistently with other applicable sentencing principles to promote the offender’s rehabilitation." [184]  The Court went on to say:

"As discussed earlier, the CCO can be used to rehabilitate and punish simultaneously. This significantly diminishes the conflict between sentencing purposes, particularly acute in relation to young offenders.  No longer will the court be placed in the position of having to give less weight to denunciation, or specific or general deterrence, in order to promote the young offender’s rehabilitation.  Rather, the court will be able to fashion a CCO which adequately achieves all of these purposes."  [186]

41The court accepted the Victoria Legal Aid’s submission that for various reasons a community corrections order for a young offender ought not be lengthy.  Basically, the imposition of a lengthy community corrections order may well negatively impact on a youthful offender’s rehabilitation and therefore be counterproductive. In this respect the Court referred to CNK v The Queen (2011) 32 VR 641.

42In the Appendix to Boulton which sets out the guidelines for sentencing courts, the court said:

"In some cases, it will be appropriate to impose a CCO (with or without an added sentence of imprisonment) for relatively serious offences which would previously have attracted quite substantial terms of imprisonment.  In determining whether to sentence an offender to a CCO, the Court should first assess the objective nature and gravity of the offence and the moral culpability of the offender. (Part 1 General Principles Nos. 2 and 3)

43The Court should then consider whether:

(a)      The crime so assessed is so serious that nothing short of a sentence wholly comprised of an immediate term of imprisonment will suffice to satisfy the requirements of just punishment."  Another sentencing consideration, as I understand it.

"(b)     a CCO, either alone or in conjunction with a sentence of imprisonment, would satisfy the requirements of just punishment." (Ibid No. 4)

44I have also had regard to the other passage from Boulton set out in defence counsel’s submissions.

45Your counsel submitted that in light of Boulton, a CCO could be tailored to appropriately address all relevant sentencing principles in your case.  The Crown submitted that an immediate custodial sentence was called for, even allowing for Boulton’s case. The Crown obtained further instructions from a Crown prosecutor that an immediate term in combination with a CCO would be within the range of available sentences in your case.

46I adjourned the matter to obtain a full assessment of your suitability for a CCO and I have given a great deal of anxious thought as to the appropriate penalty in your matter.  I am afraid that I have come to the view that the weight which must attach to all relevant sentencing principles in your case demands that you must serve a term of imprisonment, but I have done what I can to keep this term to a minimum and you will then be required to undergo a CCO.  I can assure you that if this case was determined by me before Boulton’s case, you would be looking at a far greater gaol term.

47Would you please stand up, Mr Corra.

48In relation to each of the charges you are convicted.

49I will first deal with the ancillary orders.

50I make an order that a forensic sample of saliva be taken from you by way of a buccal swab from the mouth.  I make the order because of the seriousness of the offences, because of your lack of opposition to the order and because it is in the public interest to make such an order.

51I warn you that if you do not co-operate with the authorised officers in the taking of the sample, then reasonable force may be used to secure it.

52I make an order under the Sex Offenders Registration Act as follows:

53     By reason of your convictions for these offences, you are to be recorded as a registrable offender for life.  You must report your personal details to the Chief Commissioner of Police annually for the rest of your life.  You must first report these details within seven days after your release from custody.  Details in writing of these reporting conditions will be served upon you by my associate.  I will ask your counsel to attend to an acknowledgement of that notice and have you sign it.

54In combination with a gaol term, which I shall indicate in a moment, you are to undergo a CCO which is to commence upon your release from gaol.  I can only impose a CCO with your consent and so I shall now set out the duration of the proposed order and its terms and conditions.

55The CCO would run for two years from the date of your release from gaol.

56The following conditions will be attached to it.

57Firstly there are the mandatory conditions that apply to all community corrections orders, which are:

(1) You must not commit another offence for which you could be imprisoned during the time that the order is in force;

(2) You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011;

(3) You must report to and receive visits from the Secretary of the Department of Justice or his or her delegate;

(4) You must report to the Dandenong Community Corrections Centre before 4 pm within two clear working days of your release from gaol;

(5) You must let a community corrections officer know within two clear working days of you changing your address or job;

(6) You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice or his or her delegate;

(7) You must obey all lawful instructions from and directions of the Secretary to the Department of Justice.

58They are the core conditions that apply to every CCO, but there are further conditions that I apply in your case and they are these.

(1) You must be under the supervision of a Community Corrections Officer for a period of two years.

(2) You must undergo mental health assessment and treatment as directed by the Regional Manager.

(3) You must be assessed for and undergo specialised programs or courses aimed at assessing factors relating to the offending including the sex offenders program, as directed by the Regional Manager.

59Do you consent to all of the terms and conditions of the proposed community corrections order?

60OFFENDER:  Yes.

61HER HONOUR:   I should tell you that if you do not obey all of the requirements of the community corrections order, then you will face breach proceedings before me.  You will then be sentenced in relation to the breach and re-sentenced in relation to the charges, in which case you may well be sentenced to a further period of imprisonment.  I would regard a breach of the Community Corrections Order as a most serious matter, whether it be because of further offending or because you did not obey any of the other conditions of the order. 

62Do you still consent to the proposed CCO?

63OFFENDER:  Yes.

64HER HONOUR:  I will have your counsel approach you in the dock now, and I will have him assist you with the signing of that document and also the document in relation to the sex offender's register.  Thank you.

65Just one moment, Mr Corra.  I apologise for that delay.  There was a problem with the copy that I had printed out in my chambers of the ensuing sentencing disposition. 

66In relation to the charges, I sentence you to the following terms of imprisonment and, in doing so, I make it clear that these are imposed in combination with the two year community corrections order:

67Charge 1       four months;

68Charge 2       six months, which will be the base sentence;

69Charge 3       five months.

70You are to be sentenced as a serious sexual offender after Charge 2, which will be noted in the records.  In view of this factor, there is a presumption of cumulation after the sentence on Charge 2, unless otherwise ordered.  However, in view of the  principle of totality, given that you are to serve a CCO of two years in addition to the term of imprisonment in respect of the charges, I do otherwise order – that is, I direct that each of the sentences of imprisonment that I impose must be served concurrently with each other, producing a total effective sentence of six months' imprisonment which will be served before you undergo the two year CCO.

71If not for your pleas of guilty, I would have sentenced you to a total effective sentence of four and a half years' imprisonment with a non-parole period of three years' imprisonment.

72I will have the authorities notified in relation to your difficulties arising from your recent accident and we will also advise the authorities as to any treatment that was anticipated by you so that suitable arrangements will hopefully be made in that regard.

73Will you take a seat for a moment, please? 

74Is there anything arising out of that?

75COUNSEL:  No, Your Honour.  No, thank you.

76HER HONOUR:  All right.  Yes, thank you.  If you could just please remove
Mr Corra now, thank you.

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