Director of Public Prosecutions v Crofts

[2016] VCC 710

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00591

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL CROFTS

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	27 May 2016
CASE MAY BE CITED AS:	DPP v Crofts
MEDIUM NEUTRAL CITATION:	[2016] VCC 710

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr T. Fitzpatrick	VLA Shepparton

1HIS HONOUR:  Michael Leigh Crofts, you have pleaded guilty to one charge of common assault and sexual penetration of a child under 16. 

2The sexual penetration charge is a representative charge for a period between 1 January 2012 and 18 October 20015, that is a charge which is a representative of regular sexual intercourse, on many occasions, during the course of the relationship between you and the complainant in the relevant period.

3These acts were consensual.  As I indicated at the plea, the age at which the complainant found herself engaging in this behaviour with you is the reason for these charges which arise out of consensual circumstances.

4The prosecution, at the outset, made clear that I should deal with you for an ongoing sexual relationship of a consensual nature and so I do precisely that.

5You were born in October 1984 and the complainant in October 1989, so there was five years difference between the two of you.  When you were 18 years of age and the complainant was 12 years of age, you commenced a relationship which developed into one in which there was regular sexual intercourse including mutual oral sex.

6By the time the complainant was 13 years old you had started staying over at her house, sleeping in her bed and engaging in sex most nights.  The complainant also spent a lot of time at your family home.  The two of you eventually moved into the complainant's family home on a permanent basis where you shared a bedroom.

7Late in 2003, after the complainant turned 14, you moved into a caravan together at the back of the complainant's family home.  You then moved in with her to a house in Baddaginnie, you had two kids together in 2007 and 2009.  You stayed together until the complainant was 22 years of age.

8During the later years of the relationship police and child protection involvement was required because of instances of domestic violence, a summary was prepared by the prosecution for purposes of the plea and it was tendered, and that was exhibited and will be retained on the court file.  That document outlines the details of the offending and gives five examples of sexual penetration involved.

9In the early part of 2005 you went camping, and on one occasion the complainant refused to have sex which angered you and you assaulted her by placing a pillow over her face and pushing it down, leading her to run out of the tent where you were staying and this was the assault.

10A victim impact statement was tendered, it was agreed that it contained some irrelevant and inadmissible material which I have left out, properly, of my consideration. 

11However, the complainant attests to what really amounted to an isolating and dysfunctional and violent relationship which threatened her security and physical integrity regularly but which also significantly took her childhood years from her and it impacted on her self-esteem and confidence throughout her life.  She has nightmares, is hyper-vigilant, anxious and her life has been impacted in detrimental and damaging fashion by your behaviour.

12I take this into account in coming to my conclusion.  The prosecution made clear that it did not rely on the violent nature of the relationship as an aggravating feature as there were no specific other charges relating to it.

13The maximum for the offence of sexual penetration of a child under 16 is ten years, an assault carries five years as a maximum.  With this maximum the law seeks to indicate the seriousness of the offending. 

14Sexual penetration of a child under 16 is an offence against the principles which stem out of a need to protect the most vulnerable children from an activity which is fraught with difficulties for them.  The violation of their physical integrity, the exploitation of their often fragile and inexperienced psychological state, the power imbalance between a child and an older person, the manipulation of vulnerabilities and susceptibility of the young, and the impact that such conduct often has on those who are used in this way for sexual gratification, even in the context of a relationship of sorts.

15The community looks to the court to denounce these acts and to deter those likeminded, both generally and specifically by just punishment.

16I take into account your personal circumstances, and those generally of the way in which this matter was dealt with.  The complainant first complained to police on 9 April 2013, but her first statement was completed a year later in 2014.  This was because she was pregnant and about to give birth.  She made a second statement in July 2014, and you were interviewed then.

17Charges were filed in September with the committal in April 2015.  In this sense, the delay that has occurred is not of your doing, but in my view given the circumstances is not inordinate or by itself calling for amelioration of sentence because of it.  However it was rightly submitted in this context, that I should give considerable weight to delay when considering its effect on you, namely on your rehabilitation.

18It has been recognised that a person may have given up a form of substance abuse which contributed to the offending, or he may have reordered his life, and such a process should not be altered if possible.

19Your last appearance before a court was in October 2011, so almost five years have elapsed.  You do have a prior criminal history going back to 1997.  Up to the year 2000 your priors involved dishonesty offences and criminal damage charges. 

20In 2011 you were charged with reckless conduct endangering, serious injury, and intentionally causing injury.  This occurred with the complainant in a case which involved a fight while in a car.  You hit her face, put your hands around her throat. You were placed on a community based order and after an initial contravention you completed the order in 2012.

21As I indicated you are now married, your wife is fully aware of the details of this matter and is supportive of you whilst disapproving of the offending.  While you commenced using cannabis at age 13 you started using amphetamines at age 18, progressing to daily use by the age of 21, leading to psychotic episodes and admissions to a psychiatric ward.  You ceased cannabis use in 2015 and drugs are said to be no longer an issue in your life.

22You are now 31, you are the youngest of two children, you lived in Melbourne to the age of 13, you attended school here until your parents moved to Benalla with you and you were schooled until year 10.  When you were in year nine your parents separated with family life being punctuated by violence and domestic turbulence.  You lived with your mother until you were 18, when you met the complainant.  Your mother's death was a low point and you fell into drug use.

23It is somewhat bewildering that both your mother and the complainant's mother knew of your relationship with the complainant, and it was known amongst family and friends, including the sexual nature of it.  Nevertheless you were neither counselled nor discouraged in this endeavour.

24This relationship continued for nine years with two children born of it as I have said.  Since 2012 you have had little contact or no contact with your children.

25In 2015 you married.  You turned 21 in October 2015 and therefore for the length of the relevant time you were a young offender.  Some ten or more years have elapsed since that time, and this is good reason to mitigate penalty as an assessment of the nature and gravity of the crime, and your moral culpability must take into account considerations of age.

26The offending here was not predatory or paedophilic in nature, though it is clear that the relationship was one which clearly reflected the differences in age and the matters I raised before which do render it serious offending.

27You have not had a constant work history, but have taken on fruit picking work, welding and work at a local timber mill.  You are now at the Benalla Timber Mill and you have been for the past year. I received a letter outlining your employment there on a full-time basis since January of this year.

28A matter was raised in your circumstances which relates to your sexual abuse by a family member on a regular basis in your young days, when aged between eight and twelve.  In this context, and in the one of your relevant mental health, I received a report from Dr Lechner, dated July 2015, and a psychiatric report from Dr. Gallagley, dated September 2015. 

29Dr Lechner opines that you do not have a psycho-sexual disorder, but your mother's death following upon a separation and decline in mental health and consequent death led to your drug use and the subsequent relationship at a time when you were at a low point in your life.  The fallout from this relationship included a suicide attempt which required the attendance of the CAT team.  You suffer from anxiety and major depression with a mood disorder which warrants psychiatric evaluation, but you presented with a positive prognosis according to Dr Lechner, in relation to further sexual offending.

30I note in this context that the court was late informed, after the receipt of the assessment by Corrections, that you had been arrested and now charged with sexual offences including a rape of a female neighbour, charges which are contested.  Given that those matters have not been dealt with by a court I am unable to take them into consideration. 

31The psychiatric report of September 2015 is a Dr Gallagley, at that time you were on Zoloft and had been on it for the previous three years.  He was also told of your suicide attempt. You told the doctor that you now realise that the relationship with the complainant was wrong and unacceptable, and you displayed distress when discussing the charges as you appeared upon your plea.

32Dr Gallagley diagnosed a current bipolar effective disorder with moderate and severe episodes.  Just as relevantly the writer opined that he finds no evidence of deviant sexual arousal, these matters do act in my view to reduce your moral culpability while moderating the need for general deterrence and denunciation of sentencing objectives.  It also effects to my mind the kind of sentence that is imposed.

33Similarly, specific deterrence should be moderated.  The remaining Verdins principles are also enlivened in relation to the potential impact on your mental health by incarceration and the potential for such a sentence to weigh more heavily on you than a person of normal mental health.

34In my view these factors (as highlighted) all affected your capacity, moral and mental, at the time of the offences.  I accept that your plea are accompanied by remorse and that, in that sense, it has a utilitarian value and so it should be accorded a discount.

35I had you assessed for a Community Corrections Order and I received a fulsome report from Corrections for these purposes which found you suitable.  The report recommendations I will adopt.  Please stand.

36On the charge of sexual penetration and on the assault charge on the indictment, you will be convicted and placed on a three year community corrections order with the following conditions.  Supervision assessment and treatment for drug abuse, assessment and treatment for mental health, you will undergo programs as directed addressing your offending behaviour.  You will participate in assessment and intervention with a sex offender program and in particular the specialised offender treatment service.  You will undertake 200 hours community unpaid work.  You will report to the Wangaratta Justice Service Centre.

37Sexual penetration of a child under 16 is a class 1 registrable offence, and upon being sentenced you will become registrable as a sex offender with a mandatory period of 15 years.  There are significant obligations which will flow from your registration, I advise you to read that material properly and to abide by their obligations or you will be placed in contravention and be brought back to the court.

38I will make an order when such an order is available for me for signature, pursuant to s.464ZF for a forensic sample to be taken from you for placement on the DNA data base.  If when a sample is sought from you (that is usually a mouth scraping which is not a painful procedure) you do not consent to it, then the police officer which is authorised can use reasonable force to take a blood sample from you, do you understand?

39PRISONER:  Yes, Your Honour.

40HIS HONOUR:  But for your plea I would have sentenced you to 18 months imprisonment.  Are there any other orders that are required?

41MR CORDY:  Your Honour, I understand that my instructor has the draft 464 orders in court.

42HIS HONOUR:  Yes, thank you, Mr Cordy.

43MR CORDY:  Thank you, Your Honour. 

44HIS HONOUR:  Mr Cordy, I will sign the paperwork.

45HIS HONOUR:  Thank you, Mr Cordy.  There will be paperwork for you to sign in relation to the community corrections order and the registration period.  So step out of the dock, come and sit behind your counsel, and Mr Fitzpatrick you can take your client through the material, as it is handed to him, so that he has an understanding of what it requires.

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