Director of Public Prosecutions v Delphin

[2022] VCC 1493

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No.CR-21-02374

DIRECTOR OF PUBLIC PROSECUTIONS

v

ERIC DELPHIN

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JUDGE:	Her Honour Judge Ellis
WHERE HELD:	Melbourne
DATE OF HEARING:	5 September 2022
DATE OF SENTENCE:	5 September 2022
CASE MAY BE CITED AS:	DPP v Delphin
MEDIUM NEUTRAL CITATION:	[2022] VCC 1493

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              one charge of sexual penetration of child under 16-plea of guilty- following sentence indication- delay in complaint of offending-child born as result of offending- lengthy prior criminal history- application of limbs 5 and 6 of Verdins

Legislation Cited:      Criminal Procedure Act 2009, Crimes Act 1958, Crimes (Amendment) Act 2000, Sex Offenders Registration Act 2004

Cases Cited:R v Verdins (2007) 16 VR 269, Bugmy v The Queen (2013) 249 CLR 571,Worboyes v R [2021] VSCA 169

Sentence:                  Suspended sentence of 12 months imprisonment, wholly suspended for a period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A. Malik	Office of Public Prosecutions
For the Accused	Mr I. Polak	Greg Thomas Barrister and Solicitor

HER HONOUR:

1Eric Delphin, on 25 May 2022, after receiving submissions at an earlier hearing, I granted your application for a sentence indication. I indicated that should you plead guilty to a charge of sexual penetration of a child under 16, then pursuant to section 207(1)(a) of the Criminal Procedure Act2009,  I would impose a sentence of a specified type, being a suspended sentence with no immediate term of imprisonment. You then pleaded guilty on arraignment today and a plea hearing took place immediately thereafter. Your counsel relied substantially on the plea submissions made at the sentence indication hearing.

2Mr Delphin, you have pleaded guilty to

·one charge of sexual penetration of a child under 16 years contrary to s 45(1) of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 2000, which carries a maximum penalty of 10 years imprisonment.

Circumstances of Offending

3The offending in this matter occurred on 1 January 2003. At the time of the offending, you were aged 37. The complainant in this matter is Alyssa George,[1] who was aged 15. By way of background, you met the complainant during a NYE party in 2002. The party took place at the house where the complainant lived with friends.

[1] A pseudonym.

4On the afternoon of 31 December, you attended the complainant’s house with a group of friends. With you was the complainant’s younger sister Courtney George[2] and her boyfriend, as well as your nephew. On the way to the house, Courtney informed you that her sister, the complainant, was 15 and a year older than her.

[2] A pseudonym.

5During the afternoon, you and the complainant introduced yourselves to each other. You asked the complainant if she was the older or younger sister. She stated that she was the older sister and that she was 15 years old. It is also said that you had a conversation with one of the housemates, who informed you that the complainant was aged 15. During the course of the evening, the complainant consumed approximately 12 cans of bourbon.

6Sometime after midnight, the complainant’s housemates and the other guests went to bed. You and the complainant stayed up, talking out the front of the house. You kissed the complainant and she kissed you back. While kissing, you purportedly kept stopping to look over your shoulder. After a couple of minutes you suggested going for a walk for a bit more privacy. The complainant agreed and you both walked to the block of units next door.

7You walked to the clothes line area at the block of units. You started kissing the complainant and placed your hands down her pants, rubbing her vagina and clitoris (Uncharged Act).

8You then asked the complainant if she wanted to have sex and she replied, ‘I guess so’. You took off your pants and then you assisted the complainant to take off hers. The complainant asked if you had a condom and you responded by saying you would not need one as you would pull out.

9The complainant laid on her back on the concrete near the clothes line and you got on top and inserted your penis into her vagina. You thrusted back and forth for a short time before stopping. You told the complainant that you were finished and that you had ‘shot a load’. You and the complainant then returned to the house (Charge 1: Sexual Penetration of a Child under 16).

10Upon returning to the house, the complainant went to the toilet and realised that you had ejaculated inside her. You were on the futon in the house and the complainant then returned to join you. After about 20 minutes, the complainant went to bed.

11Approximately one month later, the complainant realised that she had missed her period and took a pregnancy test. This test revealed that she was pregnant. About two months after the offending, the complainant saw you on the street in Dandenong and she told you that she was pregnant. You told the complainant that you did not want to have anything to do with the baby, due to her age.

12In late 2003, Ms. George gave birth to her daughter. You had no further contact with the complainant following the birth of her daughter, Lucy.[3]

[3] A pseudonym.

13On 14 February 2020, the complainant attended the Sunshine Police Station and made a report to the Police. On the same day, the complainant participated in a pretext call with you. You were informed that Ms. George had given birth to the baby and you agreed for her daughter to give you a call. The complainant’s daughter later attended the Police Station and provided a voluntary DNA sample.

14On 7 July 2020, you attended the Moorabbin Police Station for an interview. You stated that you knew the complainant through her sister. You noted that you had not seen or spoken to the complainant for approximately 17 years. You denied ever having sex with the complainant noting that you had only met her once or twice. You then provided Police with a voluntary DNA sample.

15DNA analysis revealed that is 3.4 million times more likely that you are the biological father of the complainant’s daughter.

Victim Impact

16A victim impact statement was prepared by Ms George and tendered on the plea (Exhibit B). This offending has had a profound and lasting effect on the complainant. Ms George describes that having a baby at such a young age was difficult. She was unable to further participate in her education or work and she was unable to have a social life, due to having a child so young. Falling pregnant at a young age made the complainant feel judged and she found it hard to accept assistance from family. She lost confidence in herself and found it difficult to trust those around her.  Ms George notes that she had to grow up before her time and that she feels like she lost her childhood.

17Ms George has been mentally and emotionally affected by this offending. She has reportedly experienced nightmares and found it hard to sleep at night. She has suffered depression and has sought assistance from a psychologist.

Procedural History

18You were charged on 24 February 2021. The matter was committed to this court on 8 November 2021, which proceeded by way of straight hand up brief. There was an Initial Directions Hearing heard in this court in December 2021. A further Directions Hearing was heard in January 2022, where your counsel indicated that an application for a Sentence Indication Hearing would be made.

19Following the Sentence Indication Hearing in May, your counsel, Mr. Polak indicated that you would need time to consider the indication given and the matter was listed for another Directions Hearing. Your counsel later informed the court that you would accept the indication given and that you would plead guilty to the charge.  You have not accrued any days of pre-sentence detention in relation to this offending.

Prior Criminal History

20You have admitted an extensive prior criminal history, which extends back to 1982. You have many prior appearances relating to motor vehicle offences, theft and dishonesty and drug offences. You have received various dispositions from the Magistrates’ Court including terms of imprisonment, suspended sentences, fines, Drug Treatment Orders and Community Correction Orders. You have multiple prior appearances in this court, relating to various charges including intentionally cause serious injury and false imprisonment. However, you do not have any prior appearance for sexual related offending.

21You served terms of imprisonment in 1989 and another six months in 1991, six months in 1992, 12 months in 1994 and 18 months in 1995. You then engaged with the Drug Court in 2002 and subsequently served 6 months after you breached the order.

22You have engaged in subsequent offending, however, as your counsel submits that none of these charges were of a sexual nature or involved children. In relation to your subsequent offending, you have received dispositions including terms of imprisonment, Drug Treatment Orders and Community Correction Orders. On multiple occasions you have received Justice Plans, most recently in 2017. You have had matters proceed by way of the Assessment and Referral Court (ARC) in 2018 and 2019. You are currently being supervised in the ARC List at Frankston Magistrates Court.

Personal Circumstances

23You are now aged 57. You were born in August 1965 in Tasmania and were raised by both of your parents. You have a large family, comprising of five brothers and four sisters. As a child you moved around frequently, and at the age of 2, your family moved to Victoria. Your family lived in rental properties located in St Kilda and Caulfield.

24Your parents separated when you were aged 10. Your father was a heavy drinker and had a propensity to be violent. He was violent towards you and your siblings on frequent occasions. He would hit you with excessive force, often to the point of bleeding. Your father would slap and punch you to the head and body. You also witnessed your father’s violent behaviour towards your mother. Both your parents later re-partnered and you experienced difficulty in your relationships with your stepparents. You did not get on with your stepmother and your stepfather was violent towards you.

25You attended multiple primary schools as a child and then later attended Collingwood Special School in Year 7. You were purportedly made to leave the school, half way through the year. You had difficulties learning and experienced social issues. You then left the family home, when you were aged 13.  You were homeless and resorted to sleeping on the streets. Throughout your life, you have spent many years been transient, living between boarding houses, abandoned houses and homeless shelters.

26Your move away from your family home coincided with you first drinking alcohol and the commencement of your cannabis use. From the age of 16, you would drink alcohol excessively. Your drug use escalated at the age of 17, when you began to use amphetamines intravenously on a daily basis. You later began using heroin. Your alcohol and drug use continued for a lengthy period of time. You ceased using amphetamines in 2020 and you later stopped drinking in 2021.

27At the age of 16, you were diagnosed with an Acquired Brain Injury (ABI) after an incident while working for your father. A chimney and weatherboard wall collapsed and you sustained a right frontal skull fracture and blurred vision in your right eye.

28Your mother passed away approximately 23 years ago, from heart issues. Prior to your mother’s death, you were residing in New South Wales and then in South Australia. After her death, your drug use escalated. This also coincided with an escalation in your criminal offending.

29Your first significant relationship was with Vanessa. You were together for a period of 7 years. You had a daughter together, who is now in her 30s. You both used heroin heavily throughout the relationship. The relationship ended suddenly after Vanessa took your daughter and moved out. You had no contact with your daughter after this. I note that you recently reconnected with her, after she contacted you on Facebook.

30You later entered a relationship with Wendy, who had four children from a previous relationship. You later had a son together. You and Wendy separated after a few years. You did not have any contact with your son for 9 years, but later reconnected. He came to live with you for a short period of time.

31Your most recent relationship was with Kelly. You met in 2018 and were together for two years. You lived together in a boarding house, however you had separate rooms. You have two young children together, a son and daughter. Due to drug use, Child Protection became involved and removed the children from you and Kelly’s care. They currently reside with Kelly’s relative in Kilmore.

32You have previously been employed as a labourer, glazier and factory hand. You were employed for a 5 year period as horse strapper. You suffered a back injury at your workplace in 2007 but have continued to work intermittently since. I note that you are a recipient of the Disability Support Pension in relation to your ABI and back injury. 

33Since the death of your mother, you have had distant relationships with your immediate family. When you were 35, one of your brothers passed away after he overdosed on drugs. You currently have contact with one of your brothers, but do not speak to any of your other siblings. Your father moved to Tasmania approximately 4 years ago.

34As noted, you have experienced recurring homelessness throughout your life. You were a recipient of a public house in July 2021, through Launch Housing. Your case manager, Caitlin Gillespie provided a letter of support to the court, as tendered on the plea (Exhibit 9). Ms Gillespie notes that since joining the program, you have engaged with your case manager and accepted available supports, demonstrated dedication to the upkeep your property and immersed yourself within the local community. She notes:

Throughout the duration of the program, Eric has been actively involved in his support needs and has established a stable and supportive network of services. Eric is constantly engaging with case managers and seeks help where necessary. Eric has shown exceptional progress in his sustaining of housing and has thrived in the program. In a time where rental properties are scarce, Eric has been able to establish his property and have the lease extended. He is described by his landlord and agent as “proof of the H2H program working”.

35I note that your lease was recently extended and Ms Gillespie states that the program will continue to support you in maintaining stable and permanent housing.

36You have long been subject to the ARC program. Your latest report from February 2022 was very encouraging and your case manager reported positive engagement.

Mental Health

37Tendered on the plea was a report from psychologist Pamela Matthews from 21 August 2003, a period reasonably proximate to the offending. At that stage, Ms. Matthews referred to you having an acquired brain injury and an IQ within the range of 57-73. She described you as having the cognitive function similar to an 8-9 year old with 38 years of life experience.

38She noted that profile analysis revealed someone who at that time was highly distressed and depressed or anxious; expressing a high level of somatic complaints and health concerns and suicidal ideation.

39Ms. Matthews considered that you were likely to have had a history of impulsivity with a pattern of recklessness and difficulty with authority; thought disorder particularly of a paranoid or persecutory flavour and difficulties forming close attachments. She opined that it was unlikely that you represented a risk of violence to society.

40According to a more recent report by Gina Cidoni from 29 March 2022, your IQ was considerably improved—that is a score of 83. It is not entirely clear why this is so. Ms Cidoni also referred to your acquired brain injury and some other medical problems (I note you have osteoarthritis in your hand). She notes you present with a history of cognitive and psychological vulnerabilities that compromise your coping skills and your problem-solving strategies. You are currently supported by the NDIS. Ms. Cidoni considered that you meet the criteria for:

a)Generalised Anxiety Disorder (which she believes emerged at an early age because of the overwhelming and unpredictability of living in a violent household and years of homelessness);

b)Post-Traumatic Stress Disorder (which she considers emerged from the severe violence that you were exposed to in your youth, as well as violent events in adulthood, including an incident where you were stabbed at the age of 17 in a car park and six years ago another incident of stabbing);

c)Major Depressive Disorder: and

d)Substance Use Disorder- in remission

41Ms. Cidoni considers that a prison term would lead to an increase in anxiety. She notes that overcoming your addiction is a life challenge where imprisonment may create more barriers to your long term recovery. She considers you a fragile man who would not cope in a prison setting. Your symptoms of depression would certainly be exacerbated she opines.

42Your counsel Mr. Polak submitted in the sentence indication hearing that your moral culpability is reduced due to your mental state and immaturity at the time of the offending in accordance with the principles espoused in R v Verdins[4]. In the absence of material discussing a nexus between your mental state at the time, and the offending, it is difficult to make a finding that limb 1 of Verdins is enlivened. I provided your counsel with further opportunity to consider whether there was material in support of such a submission, or to see if it would be possible to obtain further information regarding your ABI though none was forthcoming. I do however take into account your acquired brain injury, as diagnosed in 2003, your apparent immaturity and other mental health concerns by way of context to the offending. Mr. Polak submits that limbs 5 and 6 of Verdins are enlivened having regard to the matters raised in Ms. Cidoni’s report. The prosecution do not take issue with this, and accordingly, I will moderate your sentence in light of these considerations.

[4] (2007) 16 VR 269.

Prospects of Rehabilitation

43Ms. Cidoni considers that you present as a low risk of sexual recidivism. I am concerned that your prior criminal history and the difficulties that you have experienced may mean there will be lapse in your efforts at rehabilitation and to that end, I consider your prospects of rehabilitation to be guarded. Your counsel submits that you have a limited ability to deal with the world generally. There is a risk you may commit further offences even of a technical nature. However, in light of Dr Cidoni’s assessment, and assuming that you continue to engage with the support services offered to you, and most importantly abstain from drug use, then I consider that those prospects are improved.

44The report of Ms. Cidoni also refers to your upbringing and the many incidences of regular violence inflicted upon you and your mother during your childhood at the hands of your father. Your counsel does not submit that principles of Bugmy v The Queen[5]  are enlivened here. The prosecution submits they are not. Your childhood exposure to violence does not explain your offending here. It does however go to explaining your recourse to illicit drug use which is linked to your history of criminal offending.

[5] (2013) 249 CLR 571.

Plea of Guilty

45I take into account your plea of guilty. It was entered once the matters had proceeded in this court, though I note that you did not hold a contested committal and therefore the complainant was not required for cross examination. This was not a plea entered at the earliest opportunity, but it is nonetheless of significant utilitarian value. You have spared the community the significant expense of a trial and importantly, you have spared the witnesses and the complainant the ordeal of having to give evidence. Your plea demonstrates a willingness to facilitate the course of justice.

46Your plea of guilty has an additional utilitarian value given that it was entered during the COVID-19 pandemic, where the court has faced a substantial backlog of trials resulting from the suspension of jury trials. As the Court of Appeal articulated in Worboyes v The Queen[6], your guilty plea is worthy of greater weight in mitigation than a similar plea entered at a time when the community and courts are not afflicted by the pandemic’s effects. As a consequence, your plea of guilty should result in a perceptible amelioration of sentence. You are entitled to a substantial discount in sentence both for your plea of guilty itself and taking into account that this has occurred during the pandemic.

[6] [2021] VSCA 169.

Nature and Gravity of Offending

47I have given this matter serious consideration.  The offending was undoubtedly serious offending. Although it was a single incident of offending, it  was an incident that has had a lifetime of repercussions for the complainant.

48By your plea of guilty, you accept that you were aware that Ms. George  was 15 years at the time. The age gap between the two of you was significant. You were 37 and therefore 22 years older than her, albeit that you are considered to have been extremely immature. Not only was there a significant age gap but the complainant asked you to wear a condom. You said you would withdraw but you did not. In doing so, this resulted in a teenage pregnancy for a young and vulnerable 15 year old. A pregnancy that she was not mentally equipped to deal with. So much so that she ultimately had to place her child into care. Furthermore it fractured the relationships she had with family including the relationship she had with her father- as she describes in her VIS. The impact upon her was profound.

49It’s not an aggravating feature that you wanted nothing to do with her upon learning of her pregnancy. However the evidence of the complainant is that she informed you upon learning of her pregnancy. You chose to have nothing to do with her.

50As I said, the offending was serious and the consequences that followed were life changing. Had the offending been committed now, and bearing in mind current sentencing practices- this conduct most likely would have attracted a lengthy custodial sentence. Had you been prosecuted proximate to the offending, however, I would have been required to take into account your ABI and cognitive function as per Ms Matthews’ report.

51I must take into account the delay. This is relevant in a number of ways. One of those is what you have done in the interim. You come before the court with a criminal history more recently.

Relevant Sentencing Factors

52The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. I am required, pursuant to the Sentencing Act 1991, to take into account various factors when formulating an appropriate sentence in your case. These include the seriousness of the offences, your culpability for them, the effect of your offending on the victim and your personal circumstances. I am to have regard to principles of parsimony, and I do so.

53The sentence I pass must balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated.

General and Specific Deterrence

54General deterrence is an important sentencing consideration in sentencing you for these offences. Other members of the community must understand that sexual penetration of a child under 16, particularly in the circumstances here where you took advantage of a vulnerable, much younger teenage girl, will be met with stern punishment.

55Specific deterrence and protection of the community are also required to be given some weight, given that you have a prior, but unrelated criminal history. You are familiar with the criminal justice system and it is important that the sentence deters you from future offending. I must also have regard to the need to impose a just punishment whilst denouncing your conduct.

Sentencing Submissions

56It was submitted on your behalf that the offending could appropriately attract a CCO. I disagree. The offending is too serious for a CCO. It is certainly too serious for an adjourned undertaking. At the first listing of the Sentence Indication Hearing, the prosecution initially submitted that it was not pressing for an immediate term of imprisonment, and that a suspended sentence would be open, given that at the time of this offending, this was a disposition available. The prosecution moderated that submission somewhat, clarifying that it is submitted that a suspended sentence would be at the very outer limits of what is within range.

57Your counsel raised concerns that having regard to your mental health issues, you might be being set up to fail with a suspended sentence. I appreciate that a suspended sentence may have its challenges but in my view anything less would be inadequate. I have given this matter a lot of consideration, and to the question of whether an immediate custodial sentence should be imposed.

58Despite my initial reservations about whether a suspended sentence would adequately reflect the seriousness of the offending, and the principles of sentencing to which I must have regard, I have ultimately come to the conclusion that a wholly suspended sentence is within range- just. In reaching this conclusion, I am mindful that the law says a term of imprisonment must be a last resort. Taking into account all of the matters in mitigation, your personal circumstances including your mental health, lack of relevant priors,  the delay, the sentence you might have received in 2003 had this matter been dealt with proximate to the offending, the significance of a plea of guilty particularly in the current climate, I have concluded that a term of imprisonment wholly suspended is appropriate.

Sentence

59Accordingly, on charge 1, you are convicted and sentenced to 12 months imprisonment, wholly suspended for a period of 2 years. Of course this means that you must be of good behaviour during the period and were you to commit further offences, it is likely you would be brought back before me in relation to a breach of that sentence.

Sex Offenders Registration Act

60Because the offence of sexual penetration of a child under 16 years is a class 1 offence for the purposes of the Sex Offenders Registration Act 2004, you will be placed on the sex offenders register. You will be required to report for a mandatory 15 years. It is very important that you comply, as failure to do so, might result in criminal charges being laid. Were this to occur within the next 2 years, you might find yourself back before me in circumstances where the prosecution allege a breach of your suspended sentence.

s 6AAA

61I indicate now that but for your plea of guilty I would have sentenced you to an immediate term of imprisonment.