Director of Public Prosecutions v Diggins (a pseudonym)

[2023] VCC 1157

IN THE COUNTY COURT OF VICTORIA

AT BENDIGO

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICHARD DIGGINS (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE HASSAN
WHERE HELD:	Bendigo
DATE OF HEARING:	26 June 2023
DATE OF SENTENCE:	28 June 2023
CASE MAY BE CITED AS:	DPP v Diggins (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1157

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – gulity plea – Supply a drug of dependence to a child (1 charge); sexual assault of a child under the age of 16 (2 charges); sexual penetration of a child under 16 (6 charges); sexual activity in the presence of a child under the age of 16 (1 charge); possession of a drug of dependence (2 charges); committing an indictable offence on bail (14 charges).Offending whilst on bail.

Legislation cited:                 Sentencing Act 1991, Serious Offenders Act 2018; Sex Offenders Registration Act 2004

Cases cited:Worboyes v The Queen [2021] VSCA 169; Bugmy v R (2013) 302 ALR 192; R v Verdins (2007) 16 VR 269

Sentence:Total effective sentence: 7 years’ imprisonment with a non parole period 3 years and 6 months; s.6AAA: 9 years with a non parole period of 6 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr J. Kantor	Emma Turnbull Lawyers

HER HONOUR:

1Richard Diggins[1], you pleaded guilty to one charge of supplying a drug of dependence to a child, for which the maximum penalty is a term of imprisonment of 15 years.

[1]A pseudonym.

2Two charges of sexual assault of a child under the age of 16, for which the maximum penalty is a term of imprisonment of 10 years.

3Six charges of sexual penetration of a child under 16, for which the maximum penalty is a term of imprisonment of 15 years.

4One charge of sexual activity in the presence of a child under the age of 16, for which the maximum penalty is a term of imprisonment of 10 years.

5Two charges of possession of a drug of dependence for which the maximum penalty is a term of imprisonment of five years.

6All of your offending occurred when you were on bail, and you have also pleaded guilty to 14 charges of committing an indictable offence on bail.  The maximum penalty for this offence is three months.

7Sexual penetration of a child under 16 is a standard sentence offence, and the standard sentence is six years' imprisonment.  Sexual activity in the presence of a child under 16 is a standard sentence offence, and the standard sentence is a sentence of four years' imprisonment.  Sexual assault of a child under 16 is also a standard sentence offence, and the standard sentence is a term of imprisonment of four years.

8A summary of prosecution opening was tendered at your plea and it sets out the full and agreed facts and circumstances of your offending.

9The circumstances of your offending in brief terms were as follows.

10Between November 2021 and April 2022, you supplied cannabis and sexually penetrated on multiple occasions a 14 year old child, Alia Hayes[2].  Often when she was drug affected from the cannabis you supplied.  You were 46 years old.

[2]A pseudonym.

11At first you supplied Ms Hayes and her then partner with cannabis.  When you found out that Ms Hayes and her partner had separated you promptly began a relationship with her.  The first charged occasion occurred in November 2021, Ms Hayes was at your home using cannabis with you and two other girls, your daughter Amber[3] who was 14 and her friend Micaylah Roe[4].  On this occasion, you kissed Ms Hayes on the lips. (Part of charge 2 – sexual assault of a child under 16).

[3]A pseudonym.

[4]A pseudonym.

12The next charged incident occurred again in November 2021 at your home.  On this occasion you kissed Ms Hayes on the lips and then began to rub her vagina.  You then pushed Ms Hayes up against a wall and simulated having sex with her. (Part of charge 2).

13The third occasion occurred between December 2021 and January 2022, when Ms Hayes was sleeping at your home on a single stretcher bed in your lounge.  When you came home in the early hours of the morning, you got into bed with her, pulled her pants down and inserted the tip of your penis into her vagina. (Part of charge 3 – sexual penetration of a child under 16).

14The fourth incident occurred between November 2021 and March 2022.  On this occasion Ms Hayes was in your bathroom putting on mascara.  You came into the bathroom and began to press your penis against her anus.  You also rubbed her vagina with your hand.  You then pulled her pants down and put your fingers in her vagina (part of charge 4 – sexual penetration) and began licking her anus near her vagina.  You then inserted your penis into her vagina. (Part of charge 2; part of charge 3).

15The fifth incident occurred in January 2022, when Ms Hayes was camping with her family and friends.  You came to the campsite with your daughter and another girl.  You used cannabis with Ms Hayes and then went to your swag, where you penetrated her vagina with your penis.  Your own 14 year old daughter was sleeping only metres away from where this was occurring. (Part of charge 3 – sexual penetration of a child under 16).

16Incident six occurred between November 2021 and March 2022.  You and Ms Hayes were in bed at your home.  You asked Ms Hayes to suck your penis which she did.  You ejaculated into her mouth and onto her stomach. (Charge 5 sexual penetration of a child under 16).

17Incident seven occurred between November 2021 and March 2022.  On this occasion Ms Hayes was in your bed with Micaylah Roe, who was a child under 16.  You came in and got into the bed between them.  You had penile/vaginal sex with Ms Hayes who was pretending to be asleep.  And this occurred, while Ms Roe was also in the bed. (Part of charge 3. Charge 6 – sexual activity in the presence of a child under 16).

18Incident eight occurred when Ms Hayes was at your home.  You were on your bed and you started touching her legs and stomach.  (Part of charge 2). You then took off her clothes and began to lick her vagina.  You simultaneously inserted a finger into her vagina.  This hurt Ms Hayes who told you to stop and pulled your hand away, but you persisted trying to lick her vagina and to penetrate her vagina with your fingers. (Part of charge 4).

19Incident nine occurred on Monday 21 March 2022.  Ms Hayes was at your home in the bathroom removing her sanitary pad because her period had stopped.  When she went back to bed, you began to press your penis into her anus and began touching her breasts and vagina over her clothing.  You then removed her pants and penetrated her vagina with your penis.  You ejaculated into her vagina. (Part of charge 2; part of charge 3).

20Incident 10 occurred on Tuesday 22 March 2022 when you were in bed with Ms Hayes and gave her a bong.  Ms Hayes smoked the bong and passed out.  She awoke to find you penetrating her vagina with your fingers. (Part of charge 1 – supply a drug of dependence to a child; part of charge 4).

21Incident 11 occurred on 23 March 2022.  You and Ms Hayes were in your bedroom, she was smoking cannabis supplied by you.  She fell asleep.  She awoke to find you penetrating her vagina with your fingers. (Part of charge 1; part of charge 4).

22On 25 March 2022, Ms Hayes and her mother attended at the Maryborough police station and Ms Hayes made a video statement outlining her allegations.  On that day a search warrant was executed at your home, a small amount of methamphetamine and a small amount of cannabis was located in a desk in your bedroom.  You were interviewed by police, you admitted to the possession of the drugs and you admitted you had provided your daughter with a drug of dependence, but you denied supplying drugs to Ms Hayes and you denied any sexual offending against her.

23You were charged and remanded in custody.  You were bailed on 28 March 2022 to appear in the Bendigo Magistrates' Court on 22 June 2022.

24On 7 April in breach of your granted bail, you commenced communicating with Ms Hayes.  You went to see each other on a daily basis until you were re-arrested on 21 April 2022.  During this time you committed multiple penetrative sexual offences against her.

25Incident 12 occurred around 7 April 2022 when after communicating with you on social media, Ms Hayes went to your home.  She arrived at around 9 pm, you told her to withdraw her complaint because it was all bullshit.  You and Ms Hayes went to your bed, you put your hand on her thigh and you started kissing her lips.  You then began rubbing against her vagina when you were both clothed.  You asked Ms Hayes if she had slept with anyone else.  She replied that she had not.  You then penetrated her vagina with your penis, you ejaculated into her vagina. (Part of charge 9 sexual assault of a child. (Part of charge 10 – sexual penetration of a child under 16).

26Incident 13 occurred the next day on 8 April 2022.  On this occasion Ms Hayes was standing in your kitchen when you started kissing her.  After kissing her for some time you went into the laundry to clean a bong.  Ms Hayes came into the laundry with you and you continued kissing her.  You bent Ms Hayes over the washing machine, removed her pants and underwear and inserted your penis into her vagina.  You ejaculated into her vagina. (Part of charge 9; part of charge 10).

27Incident 14 occurred between the 7th and 21 April 2022.  On this occasion, Ms Hayes came to your home in the early hours of the morning.  You went into your bedroom together and you began touching her thighs, breasts and buttocks.  You then tied her hands to the bedhead and removed her pants and underwear.  You penetrated her vagina with a dildo.  You removed the dildo and then penetrated her vagina with your fingers. (Part of charge 9. Charges 11, part of 12 – sexual penetration of a child under 16).

28Between 21 November and 25 March 2022 in addition to Ms Hayes, you supplied cannabis to multiple young females, including your daughter aged 14, and two other girls aged 15 and 17.

29On 15 June 2022, Ms Hayes participated in a second video statement with police outlining her further allegations which occurred after your grant of bail on 20 March 2022.  You were interviewed again by police on 25 March 2022, this time you made full admissions, although you denied you had sex with Ms Hayes when she was passed out or asleep.  You said you were remorseful and regretted your actions.

30You pleaded guilty to these offences before me on Monday 25 June 2022.  There has not been a contested committal in this matter.  You have always been prepared to resolve this matter, but there were areas of factual dispute between you and the prosecution.  The matter was listed for a contested plea hearing with the victim giving evidence.  However, this did not occur.  It therefore remains the case that this matter has resolved without the child victim giving evidence.  This would have been a very difficult experience for Ms Hayes.

31Your plea is therefore an early one, it has saved the victim and the community the trauma and cost of a trial, it therefore has significant utilitarian value, heightened in the still ongoing context of COVID-19 related delays and disruptions to the administration of criminal justice in this state.

32I sentence you in accordance with the principles set out in the case of Worboyes.[5]  I also accept that your plea of guilty in conjunction with your admissions to police in your second record of interview and in conjunction with your ongoing expressions of remorse, including your letter to the Court tendered at your plea, is indicative of remorse on your part.

[5]Worboyes v The Queen [2021] VSCA 169

33Victim impact statements were tendered from Alia Hayes and her mother.  Both have requested that the contents of those statements not be read out in open court but both statements described the ongoing effects of your offending on Ms Hayes.  Mr Kantor who appeared on your behalf submitted at the time you believed you were in a relationship with Ms Hayes, and did not believe it was wrong to be having sex with her.  Mr Kantor did not submit that this was mitigatory, only that it was an explanation for your offending.  You understand now, that you should not have been having sex with a 14 year old child.

34It is irrelevant that Ms Hayes willingly took cannabis with you and seems to have willingly pursued a relationship with you.  You were 46, an adult, she was 14, a child.  Harm is presumed to children when they are the victims of sexual abuse by adults, and this includes future harm.  Children and young people often because of their immaturity, do not appreciate the harm that premature, sexual experience causes.  Young people make mistakes, often attributable to their immaturity and sometimes poor choices and lack of judgement.  The law must endeavour to protect children and young people from sexual exploitation by adults, this often involves protecting children against themselves and against the consequences of their own immaturity and poor decisions.

35Your offending against Ms Hayes was objectively very serious.  She was only 14, you were supplying her with cannabis.  Your offending involved multiple instances of penetration over around five months.  On many occasions she was drug affected when the penetration occurred.  On one occasion you tied her to a bed head and used a dildo on her and this occasion in my view, involves degrading conduct.

36You were on bail at all times when you offended and moreover you were on a further grant of bail for offending against Ms Hayes up until 25 March 2022, when you continued to regularly sexually penetrate her between the 7th and 21 April 2022.  Your offending against Ms Hayes was highly exploitative and corrupting.

37There are other victims involved here who are your daughter and her friends to whom you supplied drugs.  And Ms Roe who was at your home when you had sex with Ms Hayes in her presence.  I regard your moral culpability for your offending as high.

38I turn now to the matters raised with me at your plea.  I begin with your personal circumstances outlined in the report of Dr Fiona Best, psychiatrist dated 19 June and submissions of your counsel.

39You were born in 1976 and you are presently 46 years old.  You are an Aboriginal man of the Yorta Yorta mob.  You were born in Melbourne and your family moved to Werribee.  You are the third child in a siblingship of seven.  Your parents separated when you were five years old.

40Your father was violent to your mother and you witnessed family violence.  You have had no contact with your father after your parents' separation.  You told Dr Best your mother remarried four times and that each marriage ended in arguments and with your mother and the children having to leave town.  You said you attended 12 different primary schools.  You left school in Year 9.  You stayed at home initially, but moved to get away from your stepfather.  You were already dealing drugs at this time.

41You went to live in Maryborough, you began working as a painter and decorator but you did not complete your apprenticeship.  You met your first partner when you were 24 and lived together for six years.  You have a daughter together.  The relationship was violent.  Your partner left you with your daughter.  You did not see your daughter again until she was 17.

42You met your second partner when you were 30.  You lived together for six years and you have a daughter together.  When the relationship ended you continued to have contact with your younger daughter and she lived with you until you were remanded.

43You started using cannabis and drinking when you were 15 years old.  You told Dr Best alcohol was not a problem for you and you drank only socially.  You told her you used 3 to 5 grams of cannabis daily up until you were remanded.  You told her you started using methamphetamine at 16.  Dr Best says that your Justice Health medical records also disclose you have a history of using intravenous drugs.

44Character references were tendered on your behalf.  Your sister is a clinical psychologist.  She says you are a loving loyal family man, she says you experienced domestic violence in your childhood and moved around a lot.  She says you left home at 14.  Your mother says that you have expressed remorse for your actions.  She says, before you went to prison, you were her carer for five to six years and she relied heavily upon you, because she has late stage emphysema.  She said you cared for her, even though you are ill with terminal multiple myeloma.  She says, she was with you when you received the prognosis that you only had five to six more years to live.

45References were also tendered from your brother-in-law and a friend of over 20 years.  Your friend describes you as a hardworking friendly and caring guy.

46You have a criminal record dating back to 1996.  You have convictions for drugs, weapons, driving, cruelty to animals and family violence offences.  You have no prior convictions of sexual offending.

47On the topic of your mental health, Dr Best notes that you have never had contact with a mental health service, nor have you ever been admitted to an acute psychiatric inpatient unit.  You told Dr Best that you were diagnosed with depression two years ago, and your Justice Health records disclose a diagnosis of pre-existing depression and anxiety, which was being well managed with an anti-depressant medication.

48Dr Best concluded that there was some evidence to suggest that you suffered an adjustment disorder and the development of some emotional symptoms, most likely in response to the charges you face and the implications for you.  Dr Best says on her assessment there was no evidence of a major mental illness that required immediate psychiatric treatment.

49Of greater significance for the sentence I will impose, is your physical health.  You are terminally ill.  You were diagnosed with testicular cancer in 2013, for which you received a stem cell transplant.  You were diagnosed multiple myeloma in 2015.  You have been advised that this condition is terminal.  In 2021, you suffered a myocardial infarction and developed heart failure.  You take regular cardiac medicine.

50Between April and May 2023 you attended St Vincent's Hospital where specialists have examined your liver function and size, there is concern regarding your white blood cell count.  Your health is well managed in custody, indeed you are having more regular treatment and check-ups in custody than you were when you were in the community.  But nevertheless, your prognosis remains terminal.

51I turn now to the submissions of the parties.

52

Mr Kantor who appeared on your behalf relied on the following matters in mitigation of sentence.  Your plea of guilty and remorse and your lack of a relevant

prior criminal history.  He submitted Bugmy[6] principles were enlivened in sentencing you, given your exposure to family violence and your unsettled childhood and disrupted education.  He submitted this was relevant to the assessment of your moral culpability in the general sense, that is your moral culpability cannot be equated with that of an offender, who came from a loving and stable home and received a good education with all its consequential benefits.

[6]Bugmy v R (2013) 302 ALR 192 (“Bugmy”)

53Mr Kantor did not submit Verdins[7] principles were engaged in sentencing you, but relied on your poor physical health and your terminal prognosis.  He submitted given the serious offending for which you fall to be sentenced, you will die in custody.  He submitted this should heavily moderate the sentence I impose.

[7]R v Verdins (2007) 16 VR 269 (“Verdins”)

54Mr Cordy who appeared to prosecute, submitted the offending was very serious.  He submitted that your plea of guilty was a significant matter in mitigation in circumstances where a child complainant avoided having to give evidence.  He did not dispute the applicability of Bugmy principles in the general sense in sentencing you and he did not dispute the relevance of your terminal illness.  He submitted a term of imprisonment comprising of a head sentence and a non-parole period was the appropriate sentence.  He submitted the relevance of your terminal illness could be accommodated in a shorter non-parole period.

55I turn now to my conclusions and to the sentence I will impose.

56I have already stated in these reasons the very serious nature of your offending.  The offences to which you have pleaded guilty include rolled up charges which encompass multiple instances of penetration.  You are subject to the single maximum penalty in respect of these charges, but the multiple sex acts cannot be ignored in the assessment of the objective gravity of your offending, nor can be contextual uncharged conduct which is relevant to my assessment of the effect of your offending on the complainant and in my assessment of your moral culpability.

57General deterrence and denunciation are the primary sentencing considerations in cases involving the sexual abuse of children.  I take into account your plea of guilty and your expressions of remorse.  I accept on the material tendered on your behalf outlining your background that Bugmy principles are engaged to moderate your moral culpability.

58I take into account your terminal illness and the real likelihood that you will die in custody.  This is relevant in the following ways.  First, I accept your poor physical health makes your time in custody more onerous.  Secondly, I accept that you must contemplate your own death in prison.  And thirdly, you must contemplate a final separation from your family while you are still in custody.  These matters will weigh heavily upon you mentally and will over and above your physical ill health, make prison a very difficult place for you.

59Further, in circumstances where it is likely you will die in custody, or where there is a risk that you will die in custody, the sentencing principles of specific deterrence and community protection have no real application here.  You fall to be sentenced as a serious sexual offender from Charge 4 onwards, except in Charges 7 and 8.  I am therefore required to regard community protection as a predominant sentencing consideration.  The prosecution did not submit I should impose a disproportionate sentence, the sentences imposed on charges where you are sentenced as a serious sexual offender, should be served cumulatively to other sentences unless I order otherwise, and your serious sexual offence status must be entered on the Court records.  The principal of totality is not displaced by the application of the serious offender provisions.

60I take into account the maximum penalty for the offences.  I also take into account the standard sentence for the standard sentence offences.  A standard sentence is not the same thing as a mandatory sentence.  Nor is a standard sentence the primary sentencing consideration or the starting point from which to add or subtract time.  It is but one matter that I must take into consideration in the instinctive synthesis and I do so.

61I must explain how the sentence I impose relates to the standard sentence and I have in these reasons, endeavoured to set out fully all the facts, matters and circumstances I have taken into consideration in sentencing you.  Given my assessment of the gravity of your offending, your moral culpability, and the mitigatory matters upon which you relied, I intend to sentence you to a sentence than is less than the standard sentence on the relevant offences.  Taking into account all the matters I am required to under the Sentencing Act and matters personal to you, I intend to sentence you as follows.  You can remain seated in the circumstances, Mr Diggins.

62On Charge 1, you are convicted and sentenced to two years' imprisonment.

63On Charge 2, you are convicted and sentenced to two years' imprisonment.

64On Charge 3, you are convicted and sentenced to four years' imprisonment.

65On Charge 4, you are convicted and sentenced to four years' imprisonment.

66On Charge 5, you are convicted and sentenced to two years' imprisonment.

67On Charge 6, you are convicted and sentenced to two years' imprisonment.

68On Charge 7, you are convicted and sentenced to one month imprisonment.

69On Charge 8, you are convicted and sentenced to one month imprisonment.

70On Charge 9, you are convicted and sentenced to two years' imprisonment.

71On Charge 10, you are convicted and sentenced to two years' imprisonment.

72On Charge 11, you are convicted and sentenced to two years' imprisonment.

73And on Charge 12, you are convicted and sentenced to two years' imprisonment.

74On the summary charges, you are convicted to an aggregate sentence.  You are convicted and sentenced to an aggregate sentence of two months.

75Charge 3 is the base charge.  I direct that six months of the sentence on Charges 1, 10, 11 and 12 and one year on the sentence on Charge 4, be served cumulatively upon Charge 3 and upon each other.  That makes a total effective sentence of seven years' imprisonment.

76

Section 11A of the Sentencing Act directs that unless it is in the interest of justice not to do so, the Court must fix a non-parole period, in this case of at least

60 per cent the total effective term of imprisonment.  In my view, given your terminal illness and its implications for the sentence I impose, I direct you serve a non-parole period of three years and six months before you are eligible for parole. 

77You have served 435 days of pre-sentence detention up to and not including today, and I direct that that be entered into the records of the Court.  I direct that your serious sexual offender status on the relevant charges be entered into the records of the court.

78Pursuant to s6AAA of the Sentencing Act, had you pleaded not guilty I would have sentenced you to a total effective sentence of nine years with a non-parole period of six years.  Pursuant to the Sex Offenders Registration Act, you are a registered sex offender for life.  I make the order sought by the prosecution.

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