Director of Public Prosecutions v Dean

[2017] VCC 1641

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 1601690

DIRECTOR OF PUBLIC PROSECUTIONS

v

LACHLAN DEAN

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	9 November 2017
CASE MAY BE CITED AS:	DPP v Dean
MEDIUM NEUTRAL CITATION:	[2017] VCC 1641

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
For the Accused	Mr R. Thyssen

HIS HONOUR:

1Lachlan Dean, you pleaded guilty to one count of sexual penetration of a child under the age of 16. That act took part on 2 October 2014 with the complainant, to whom I shall refer to as M for privacy and reasons of anonymization.  At the time, M under the age of 16.  She was in fact 14.  You introduced your penis into her vagina on that occasion.

2You were 19 at that time.  You had communicated with her by text messages and Facebook for a number of months.  You would meet her at her school where she was a Year 9 student and during that time, because of those factors and because you were told so, you knew she was 14.

3On 1 October, she came to your home where your father was present in Epsom.  You offered her alcohol.  You also gave her some tablets and although the Crown is unable to say what they were, it is clear, at least in her belief, that they were sedatives of some sort.  She was clearly highly intoxicated and effected by both the alcohol and whatever it was that she was given to take.

4And in that state in the early hours of 2 October, you had sexual intercourse with her in your bedroom while you were wearing a condom.  At some point, she pushed you off saying that she was not ready for this.  You rolled over and went to sleep.  A few days later, she made a complaint to the police by way of a video statement.

5Unfortunately in this matter, there were two periods of delay before you were charged.  One was between her complaint of the 8 October 2014 until your interview of 2 December 2015.  I was told as to the reasons why being related to workload in that region in relation to the type of offending involved.  I accept that explanation.  Nevertheless, the delay is one which I must take into account.  It is particularly relevant because of your age at the time because of the circumstances of the offending.

6There was then a shorter period again between that interview on 2 December and 22 February 2016, when you were finally charged.

7At the filing hearing in March, you failed to appear and a warrant was issued.  But you did appear at the committal mention in August and as plea discussions continued until late September when at a further committal mention, you entered a plea of guilty.

8Although there is no victim impact statement, I can infer from the circumstances of the offending that the usual matters that apply to this type of case apply in this case by way of reasonable inference.  The reason why the law considers that adult men, even young adult men should not engage in sexual intercourse with children is because that particular activity, depending on the circumstances of how it comes to be performed, can have significant impact, particularly on the young involved because of the levels of psychological and sexual immaturity involved.

9Now I understand from the plea that you at least up until now have had a difficulty understanding plainly what it was you did wrong.  I think what you have to come to accept is that it is simply unacceptable for a young man of your age to engage in sexual activity with under aged persons.  It is illegal, it carries significant amount of moral culpability and it is a crime that carries a maximum penalty of ten years' imprisonment, which tells you that the law is representative of an attitude in the community by the people in our community that that sort of behaviour is unacceptable and a crime.

10Before I go onto announce the sentence, I should say this.  That because of the nature of the offending being a Class 1 offence, you are going to be subject to mandatory registration as a sexual offender.  That does not form part of the sentence, but is triggered by the sentence, and that is a serious consequence for anyone, much less someone of your age because you are going to have significant obligations under that registration requirement for 15 years.

11I would advise you to listen carefully to what Mr Thyssen or someone else might advise you about that registration because it carries some very significant obligations on your part for a very long time, and if you do not comply with the requirements, you will be breached as a sex offender and you are likely to be brought back before a court for further punishment.  Do you understand?  So when you get the paperwork in relation to that, you should read it very carefully.

12There is also a forensic sample that is sought from you as a result of this offending.  That means that an authorised officer will approach you to get a scraping from the mouth, it is not a painful procedure, in order to put your DNA on a database.  That means that if you should be silly enough to commit further offences, investigators will have your DNA on record.  When you are asked for such a sample, if you do not consent, the authorised police officer can use reasonable force to get a blood sample from you, do you understand?

13A plea was made on your behalf in relation to this matter and the first thing that Mr Lavery on your behalf spoke to me about were your priors.  These priors, despite the fact that they are from the Children's Court, are going to accompany you for a significant period of years.  Magistrates and Judges are going to be able to look at this record that is now going to be contain one more prior, that is this matter, and they will see that you have priors spanning since 2009 from the Children's Court of assault, of thefts, of driving vehicles without permits and licenses, robbery and they are going to take those into account, just like I do.

14You are now 22 and you were born in Bendigo.  Your parents separated when you were just 12 months and you have lived with either one or other of your parents ever since.  You have two older sisters and I was told that one of them was pregnant at 14 and might have been part of this understanding that you had about whether it was all right to have sex with a 14 year old or not.  Whatever happened to your sister really has nothing to do with what you decide to do with your life.

15You were educated to Year 10 at Bendigo Technical College.  You have had some amount of work, but no great work history.  I am told that living with your father was probably difficult because of his own background and the fact that he was not too happy about police turning up at his address.

16Irrespective of all of that, Mr Dean, at 22, if you are purporting now to very soon being a father of a child, I suggest to you, you grow up because that person over there that is about to bear that child is not going to hang around to be mucked around by you.  Do you understand?  So you had better be thinking about things like work, a house and other such activities.

17Now I understand that you have had a disadvantaged background, which might have impacted on how you have viewed yourself and the world around you.

18In August of 2015, for a collection of offences which included burglaries and thefts and aggravated burglary, which are very serious offences, you were put on a two year community correction order.  That order was extended and I have got a report from Community Corrections, and I am told that you have done quite well in the last period of time in relation to that order.  Completing the community work and discharging your obligations successfully so that that order will probably expire in mid-November.

19Now I take into consideration the fact that you have pleaded guilty and you have done so at a reasonably early stage.  That means that you have avoided a trial at which the complainant would have had to give evidence and I take that into account.

20I take into account that those priors do not contain any sexual offending, that there are no other matters pending, and that you have had a socially impoverished background and more importantly than anything else, I take into account that you are a youthful offender and to some extent, the delay has meant that you may have missed on eligibility for some other disposition like Youth Training Centre.

21I am not sure whether the fact that you have complied with the order means that you are rehabilitated.  I suppose that because of your age, you have probably, if you have put your mind to it, have got good prospects of rehabilitation.  No one told me that you are dumb or stupid, although it seems to me, they are all of the things on your record seems to show that you must be either one of those things.  But whether you really are or not, that is a matter for you.

22I am going to sentence you to a community correction order, rather than send you to gaol, which I could do.

23I am going to sentence you to an 18 months community correction order and I have to provide that length because I want you to do a sex offenders program, and you may be directed to do some other programs.

24I am going to order that you do 150 hours community work and I expect that you will do all of them.  I am not going to credit programs and otherwise to that work program.  At the moment, you are unemployed.  You can be busy doing whatever you are directed to do.  You will be supervised by the Community Corrections Services in Bendigo who know you and if you have been able to comply for the period of the order that is about to expire, then I am sure you can comply with the coming period of time.

25In that time, Community Correctional Services are there to help you, not just to see that you comply with the order.  But if you need some assistance with work, with accommodation and with other things like that, you should talk to them now that you know them and they know you.  They can help you.

26I will also order that you undergo assessment, treatment and rehabilitation for drugs because I am told that that has been a problem in your background.

27If you reckon you were not helped by your own man's behaviour, then I would have thought, if you have a child on the way, that you would not want to duplicate that for that child, would you?

28OFFENDER:  No, Your Honour.

29HIS HONOUR:  Well this thing that I am doing today is designed to try to help you.  But I tell you this today.  If you breach this order by continuously not showing up, by not doing your work and by not going to the appointments for supervision, for anything else that they might ask you to do, you are going to be brought back before me and I will impose another penalty for this charge and for breaching that order.  Do you understand?

30OFFENDER:  Yes.

31HIS HONOUR:  Program will be - the order will be for 18 months with 150 hours of community work, treatment and rehabilitation for drug, programs to reduce reoffending and provide for supervision.  It will be with a conviction.  I will make the order in relation to the Sex Offenders Registration Act for 15 years and an order for a forensic sample pursuant to 464ZF and if you have drafts of those orders, Mr Cordy, I will sign them.

32MR CORDY:  Yes.  I will hand them up, Your Honour in the appropriate form.

33HIS HONOUR:  Mr Dean, you should report to the officer in charge of the Bendigo Police Station during the period of four weeks commencing 28 days after today in order to undergo a forensic procedure, which I have just ordered.  There any other orders, Mr Cordy?

34MR CORDY:  Just a 6AAA, Your Honour.

35HIS HONOUR:  Yes.  Yes, I should declare the amount of discount that you have received because of your plea.  So I should say that but for your plea,
Mr Dean, I would have sentenced you to nine months' imprisonment.

36COUNSEL:  Your Honour pleases.

37HIS HONOUR:  Yes, thank you gentlemen.  Thank you, gentlemen. Sine die.

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