Director of Public Prosecutions v Dillon (a pseudonym)

[2024] VCC 1070

IN THE COUNTY COURT OF VICTORIA

AT BENDIGO

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

CLAYTON DILLON (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Bendigo
DATES OF PLEA HEARING:	27 June 2024 (Bendigo) and 16 July 2024 (Melbourne)
DATE OF SENTENCE:	16 July 2024 (Melbourne)
CASE MAY BE CITED AS:	DPP v Dillon (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1070

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW- Sentence

Catchwords:              Plea of guilty – sexual penetration of a child under 12 – four charges of sexual penetration of a child under 16 – three charges of sexual assault of a child under 16 – encouraging a child under 16 to engage in, or be involved in, sexual activity – possession of an imitation firearm – rolled- up and course of conduct charges – protracted, opportunistic offending against two separate victims – considerable age disparity given age of victims – breach of trust – Doran discount – mental health impairments contributed to offending behaviours – burden of imprisonment – standard sentences

Legislation Cited:      Crimes Act 1958; Sentencing Act 1991

Cases Cited:The Queen v. Doran [2005] VSCA 271; Romero v. The Queen [2011] VSCA 45; R v. Verdins (2017) 16 VR 269; Brown v. R. (2019) 59 VR 462; Clarke (a pseudonym) v. The Queen [2022] VSCA 89; Harlow (a pseudonym) v. The Queen [2018] VSCA 234

Sentence:                  Total effective sentence of five years’ imprisonment, non-parole period of three years fixed

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D.R. Cordy	Office of Public Prosecutions Victoria
For the Offender	Ms K. Temperley	Teak Legal & Consulting

HER HONOUR:

1Clayton Dillon[1], you have pleaded guilty to four charges of sexual penetration of a child under 16 contrary to s 49B of the Crimes Act 1958 (“the Act”), one charge of sexual penetration of a child under 12 contrary to s 49A of the Act, three charges of sexual assault of a child under 16 contrary to s 49D of the Act, and one charge of encouraging a child under 16 to engage in, or be involved in, sexual activity contrary to s 49K of the Act.

[1]A pseudonym

2These charges arise from your sexual abuse of two sisters, both of whom are your second cousins. The offending occurred on occasions when you and your mother visited the victims’ family at their home, or they visited you, including times when you were asked to care for them. You offended against the first victim on occasions between November 2020 when she was 11-years-old, until November 2022 when she was 13. You offended against her younger sister on occasions between January 2022 when she was eight years old, until November 2022 when she was nine.

3You have also consented to this court sentencing you for an unrelated summary offence, namely possession of an imitation firearm, which was located at your home on 14 November 2022, contrary to s5AB of the Control of Weapons Act 1990, the maximum penalty for which is two years' imprisonment or 240 penalty units.

4You were born in July 1999 and were between 21 and 23 years of age at the time of this offending. You have no prior criminal history.

Circumstances of offending

5The circumstances of your offending are as follows.

6I deal first with your offending against the first victim.

7Between 14 November 2020 and 26 November 2021, you and your mother visited the victims' home in regional Victoria.

8The sisters were playing in their bedroom and had made a fort from linen sheets in their bedroom. The room was covered in blankets and was dark. The victim lay on her bed with her back against the wall, watching a program on her iPad. You entered the bedroom and lay beside her. You then put your hand down her pants, under her underwear, and penetrated her vagina with your finger. You asked her, 'Does it feel good?' This conduct is the subject of Charge 1, sexual penetration of a child under 16. You stopped so the two of you could join the family for dinner.

9After dinner, the victim returned to her bedroom to continue watching her program. You followed her into the bedroom and again lay down next to her, putting your hand under her underpants to penetrate her vagina with your fingers. While you penetrated the victim’s vagina, you said, 'Wow, two fingers'. This second act of sexual penetration is the subject of Charge 2, sexual penetration of a child under 16.

10Between 16 July 2021 and 13 November 2022, the victim stayed overnight with you and your mother at your house. The victim referred to your mother as her 'aunty'.

11During this period, the victim was sitting on a beanbag in the loungeroom while you sat next to her on a separate beanbag, sharing a large blanket over your legs. Your mother and a friend of hers sat on couches behind you, while everyone watched a movie. You took this opportunity to slide your hand down the victim’s pants, under her underwear and then penetrated her vagina with your fingers. This conduct is the subject of Charge 3, sexual penetration of a child under 16.

12On a separate occasion during this period you touched the victim’s right breast under her clothing while she was lying on a hammock. This is the subject of Charge 6, sexual assault of a child under 16.

13On 13 November 2022 the victim was left in charge of her two younger siblings when the rest of the family travelled to Bendigo for a medical appointment. Your mother asked you to go to the house to assist the victim as she knew the rest of the family had gone to Bendigo. When you arrived you greeted all three children inside the house. The victim then went into her bedroom and sat at her desk, watching a movie on her laptop and sorting her beads.

14You sent the victim a SnapChat message asking if she was alright. You then went into her bedroom and kneeled beside her. Using your right hand, you lifted her tank top and bra, then squeezed her right breast and nipple repeatedly. The victim continued to watch her movie, despite her breast being exposed. This conduct is one of the incidents comprising rolled-up Charge 7, sexual assault of a child under 16.

15On one occasion, you used your right hand to unbutton the victim’s denim shorts and touched the outside of her vagina, a further incident comprising rolled up charge 7.

16Later that day the victim was sitting at the dining table in the kitchen with her siblings. You stood behind her and then placed your right hand under her tank top and bra, touching her on the breast in the presence of her two younger siblings. All three children played a game on their electronic devices while you did this. This is the second incident comprising rolled-up Charge 7.

17The last incident of offending that day occurred when you sat with the victim on the couch in her living room, covering both of you with a blanket. The victim’s younger siblings were also seated on the couch. You rubbed the victim’s thigh in a circular motion under the blanket. You then unbuttoned her denim shorts and then slid your hand inside her shorts, under her underwear to insert your finger into her vagina. You moved your finger in and out of her vagina slowly, doing so in close proximity to her younger siblings. The victim remained on her mobile phone. This conduct is the subject of Charge 8, sexual penetration of a child under 16.

18As you penetrated the victim’s vagina with your fingers you wrote a message in the notes app on her mobile phone, saying 'We can go into your bedroom and I’ll lick it'. You then tapped the victim’s thigh for her to read the note. The victim turned away from you, attempting to ignore you. You then wrote a second note saying, 'Up to you'. You tried to attract the victim’s attention by elbowing her to read the note. The victim understood your intention was to lick her vagina in the privacy of her bedroom. This conduct is the subject of Charge 9, encouraging a child under 16 to be engaged in sexual activity.

19The victim remained seated with her legs crossed, trying to prevent you from continuing to penetrate her vagina with your finger. A short time later she told you she needed a drink of water, at which point you ceased penetrating her vagina.

20When the victim’s mother and stepfather arrived home she told them about your offending conduct. Her stepfather immediately removed you from the house.

21I turn now to deal with your offending against the second victim.

22On one occasion between 26 November 2021 and 13 November 2022, you visited the victim and her family at their home. You had a shower when you arrived and sat on the couch with the victim where she was watching a cartoon, Peppa Pig, on her laptop. You placed a blanket over both of your legs saying, 'Please, can I?' The victim understood you were asking to touch her vagina. She said, 'No' several times while you persisted in asking her until she said 'Yes', and you touched her vagina. You then slid your hand under her pants and underwear and touched her on the vagina while she continued to watch Peppa Pig.

23The victim recalls that you touched her on the vagina approximately three to four times while she was seated on the couch in her loungeroom, with the first occasion occurring when she was eight years old, before her ninth birthday. She recalls this occurred on occasions you were both covered with a blanket and when you were not. This conduct is the basis of a course of conduct Charge 5, sexual assault of a child under 16.

24The second victim complained to her parents about your conduct at the same time as her sister on 13 November 2022.

Arrest and interview

25You were arrested by police and interviewed on 14 November 2022, during which you made full and frank admissions to police about your sexual offending against both victims.

26You admitted that you sexually offended against the second on three separate occasions by touching her vagina. You told police that on one of those occasions your finger 'May have gone past the lips.'  When asked if your finger went past the outer lips, prior to the vaginal cavity, you responded 'Yes'. Your admission to this act is the subject of Charge 4, sexual penetration of a child under 12. This was a matter that was not disclosed by the victim in her video recorded statement to police.

27DNA linking you to the offending against the first victim was also obtained following analysis of vaginal swabs taken from her.

Nature and gravity of the offence

28Sexual offending against children is abhorrent. The offences to which you have pleaded guilty are inherently serious, as can be gauged from the maximum penalties set by Parliament. The offence of sexual penetration of a child under 12 carries a maximum penalty of 25 years’ imprisonment. The offence of sexual penetration of a child under 16 carries a maximum penalty of 15 years' imprisonment, while sexual assault of a child under 16 carries a maximum penalty of 10 years' imprisonment, as does the offence of encouraging a child under 16 to engage in sexual activity. These maximum penalties unequivocally reflect the seriousness with which Parliament, on behalf of the community, views sexual offending against children.

29There are a number of aggravating features to your offending.

30Firstly, your offending was protracted, occurring over a two year period. You had more than adequate time to reflect upon the wrongfulness of your conduct, and to desist, but you did not. Your moral culpability increased with each further act of offending against the victims over that period.

31Secondly, you were an adult of between 21 and 23 years of age at the time of the offending. The victims were considerably younger; the second victim was between eight and nine, and the first victim was between 11 and 13 when you offended against them. Although the age disparity is not as great as may be seen in other cases, an age gap of ten or more years is considerable for children that age whose vulnerability arises from their very lack of life experience and understanding. For that reason, the law places an absolute prohibition on premature sexual activity with children to protect them from the harm that is presumed to flow from such offending.

32Thirdly, although you were not in a formal relationship of trust with the victims, you were a trusted member of their extended family; a trust which you were prepared to exploit for your offending. The two families spent much time together and by your offending you breached the trust that is born of such a relationship; not only the trust of the victims but of their parents who trusted you to spend time with their children, knowing you were family, even entrusting you to care for the children on 13 November 2022.

33Fourthly, you offended against not one but two separate victims and did so in brazen circumstances on a number of occasions. For instance, offending against the first victim by sexually penetrating her vagina with your fingers while your mother was seated in the same room watching television, and on a separate occasion, in close proximity to her younger siblings while sitting on the couch in the loungeroom.

34As to the charge of sexual assault involving the second victim, you persisted, notwithstanding her clearly and repeatedly saying 'No' to your request to touch her on the vagina, before she relented.

35You concealed your offending against both victims by using a blanket, indicating a level of understanding of the wrongfulness of your conduct and the need to hide what you were doing from detection.

36The victims were entitled to be safe in their home, and on occasions they visited your home, from sexually predatory behaviour. I accept that the offending was opportunistic, but it was sustained. It appears you were prepared to take advantage of the vulnerability of the victims when opportunities presented through your regular contact with them over that period.

37While there is no hierarchy of penetrative offences, I accept that the risk of pregnancy or transmission of diseases does not arise in this case. I also accept the submission made on your behalf that your offending was not aggravated by other features sometimes seen in cases of this kind, such as threats or acts of violence, or otherwise consisted of coercive or degrading conduct directed at the victims. Rather, it was the young age of the victims and your relationship with them that left both girls vulnerable to your offending.

38Your offending has had a profound effect on the lives of the victims and their parents. This is evidenced by the victim impact statements that were read aloud at your plea hearing.

39For the first victim, your offending has left her feeling scared and confused. Unsurprisingly given her age she says she did not know if what was happening to her was 'right or normal' and worries about being able to trust people into the future. Her schooling has been affected by memories of your offending.

40The second victim also feels confused and anxious because of your offending, saying you, 'Kept doing it… and I don't know why.'  She says she now worries about spending any time away from her mother, even with friends. Given her very young age she does not understand why she is no longer able to see you or your mother and worries about not seeing your family into the future.

41The victim impact statement provided by the victims’ mother speaks of the corrosive impact of your betrayal of her trust. She says that she had always been protective of you, treating you as a brother, and that she trusted you to care for her children. She says this is why your offending was so hurtful and has left her so angry. She also speaks of the resulting fracture in the family, saying your offending has damaged her relationship with her mother and yours.

42Although the victims’ mother bears no responsibility for your offending, she describes feeling guilty for failing to protect her children. She also describes how she has observed the way in which your offending has impacted on her children; saying her eldest daughter has 'shut down' and is struggling with school, while her youngest daughter no longer feels safe away from home and has difficulties managing her emotions.

43The victims’ father describes how you and your mother were 'the closest family we had' and that you were allowed into their home 'with open arms'. He says, 'life as we knew it unravelled' when your offending came to light. In his victim impact statement, the victims’ father speaks of this being the last thing they expected to happen when you 'leave your family with family', but for now he is focused on supporting his family.

44Mr Dillon, you can be in no doubt that your serious offending has caused significant harm to the victims and that your extended family has been torn apart as a result. You bear a high degree of moral culpability for your offending conduct, however, this is also informed by your personal circumstances to which I now turn.

Personal circumstances

45You were born in Canberra in July 1999 and are now almost 25 years old.

46Your parents separated when you were a year old and you were primarily raised by your mother in Victoria. Your father remained in Canberra and remarried, and you have two paternal half-siblings. Despite the distance you remained in regular contact with your father as you grew up, including visits to Canberra and your father visiting you in Victoria.

47You have always enjoyed a close relationship with your mother and report enjoying a happy childhood, despite difficulties with schooling.

48You struggled academically in both primary and secondary school and required the assistance of a teacher’s aide throughout your schooling. You struggled to learn to read and write and had difficulty making friends. You were diagnosed with an autism spectrum disorder at the age of 14 and report feeling embarrassed and ostracised at school as a result, reporting experiences of bullying.

49In Years 10, 11 and 12 you completed a mechanical pre-apprenticeship course and began working as a panel beater after leaving school, completing three out of a four-year apprenticeship. However, due to a workplace injury to your elbow you were unable to pursue this career. After the injury you worked as a bar tender for a number of years. More recently you have worked as a bartender on a casual basis, working between 12 to 15 hours a week, supplementing your Centrelink payments. You quit your job in anticipation of receiving a custodial sentence for this offending.

50In 2023 you and your mother moved to live in Wallan. You were living with your mother at the time of this offending. Your mother remains supportive of you, as she has demonstrated by her attendance at your plea hearing despite the understandable difficulty this has caused her due to her relationship with the victims’ family.

51At your plea hearing, I was referred to medical and other reports dating back to 2010. Dr Michael Welham, a consultant child and adolescent psychiatrist, assessed you at the age of 11 when you were in Grade 5 at a local primary school. In his report dated 8 August 2010[2], Dr Welham records that you 'presented with ongoing behavioural, social and learning concerns' at that time and provided a tentative diagnosis of Asperger’s syndrome. In his report, Dr Welham records you were prescribed Ritalin for ADHD in 2009. He concluded that you present with 'multiple developmental difficulties' and recommended extra support. You were also assessed by a speech pathologist, Ms Jane Waterson, at this time.

[2]Exhibit 2 – Report of Dr Michael Welham, Consultant Child and Adolescent Psychiatrist dated 8 August 2010

52You were assessed for the purposes of the plea hearing by clinical psychologist, Ms Alison Mynard, on 4 and 17 April 2024.  In her report dated 28 April 2024, Ms Mynard outlines your early childhood difficulties making friends. You told Ms Mynard that you have two friends that you remain in contact with, often playing video games, but otherwise told her that you are never sure that 'being [yourself] is acceptable to others'. Ms Mynard states that you struggle to pick up social cues and as a result you keep to yourself in the community. You told Ms Mynard you fear doing the wrong thing and that you do not want anyone around you to feel uncomfortable, so you are 'always in [your] shell'.

53You have had two brief relationships with age-appropriate females in your teenage years, but they did not work out.

54Ms Mynard states you present with a blunted affect and a reserved demeanour. She administered the Adult Autism Diagnostic Observation Scale and concluded that you meet the diagnostic criteria for an autism spectrum disorder. She further used diagnostic tools to assess your level of emotional intelligence and empathy, finding you have a very poor level of empathy. In Ms Mynard’s opinion this has impacted on your capacity to understand the impact of your offending on the victims. Ms Mynard concludes that your moral development is immature, reflecting a 'childlike understanding that behaviour is wrong if there are negative consequences, rather than an integration of internal values and standards of empathy… and compassion for others'.

55Ms Mynard states you report severe symptoms of depression and high levels of anxiety and diagnosed you with a persistent depressive disorder.

56Cognitively, Ms Mynard assessed you with a poor working memory, falling within an extremely low range for a person your age. Ms Mynard explains that working memory is critical for learning, comprehension and reasoning, including managing inhibition. She states that without this executive function 'connection and communication with others can be adversely affected'. Ms Mynard also considered that you present with symptoms of ADHD and recommended that you be assessed by a specialist psychiatrist in respect of this disorder. Ms Mynard was unable to assess your full-scale IQ.

Matters in mitigation of sentence

57Having discussed the objective gravity of your offending, I turn now to the matters Ms Temperley raised on your behalf in mitigation of sentence in her detailed and helpful written submissions, which she expanded upon at your plea hearing.

Guilty plea and remorse

58Significantly, you have pleaded guilty to these offences, and in doing so you have accepted responsibility for your offending. While this was not a plea entered at the earliest opportunity, your guilty plea saved the court and the community the time and resources associated with a trial. Further, I note that the matter resolved to a guilty plea without the necessity of a contested committal hearing in the Magistrates’ Court.

59Importantly, your guilty plea saved the victims from the ordeal of reliving these events in court. Given the age of the victims, this is a matter which attracts a significant sentencing discount in addition to the utility of your guilty plea.

60Over and above the remorse inherent in your guilty plea, I also have regard to the fact that when arrested you co-operated fully with the police, making full and frank admissions to your offending conduct.

61Moreover, when you were interviewed by police you voluntarily disclosed the act of digital-vaginal penetration that is the subject of Charge 4, sexual penetration of a child under 12. This was an act of sexual penetration that was not disclosed by the second victim in her video recorded statement to police.

62The right to a significant sentencing discount where an offender, by his or her own admission, provides proof of an offence which was otherwise unknown and which the prosecution could not otherwise have established, is well settled[3]. The sentencing benefit, known as a Doran discount, applies in further moderation of the sentence I impose on Charge 4, over and above the sentencing discount that applies to your guilty plea.  In the absence of your admission to this offence, the prosecution was not aware of the commission of this offence as it was never disclosed by the victim in her video recorded statement.  For that reason the authorities make it clear that such a discount must be a significant one.

[3]The Queen v.Doran [2005] VSCA 271; see also Latina v The Queen [2015] VSCA 102

Autism Spectrum Disorder

63On your behalf it is submitted that there is a causal link between your autism spectrum disorder and learning difficulties and your offending behaviour, enlivening the principles enunciated by the Court of Appeal in Verdins.[4] The prosecution oppose such a finding.

[4]R v. Verdins (2017) 16 VR 269 (“Verdins”)

64In the case of Verdins, the Court of Appeal explained that impairment of mental functioning must contribute to, but need not have caused, the offending behaviour. However, it must have some 'realistic connection' with the offending. This means that it must be established that the offender’s condition had the effect of 'impairing [their] ability to exercise appropriate judgment or impairing [their] ability to make calm and rational choices or to think clearly at the time of the offence'. [5]

[5]        Romero v The Queen [2011] VSCA 45, [13].

65In Verdins the Court of Appeal also explained that there needs to be a clear evidentiary basis for moderating the principles of general or specific deterrence. Further, that whether general deterrence should be moderated or eliminated depends on the nature and severity of the symptoms exhibited by the offender and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the time of sentence, or both.[6]

[6]Verdins, p276, [32]

66There is clear evidence before me that you have demonstrated behavioural and learning difficulties from a young age. Dr Welham tentatively diagnosed you with Asperger’s syndrome when you were 11 years old. You have now been diagnosed by Ms Mynard with an autism spectrum disorder and with significant deficits in your working memory. Ms Mynard concludes that your autism spectrum disorder impairs your empathy and insight into the impact of your offending on the victims, reflecting a 'childlike' understanding that your conduct was wrong. Ms Mynard further considers that your poor working memory, falling within the extremely low range, impairs your ability to reason and is associated with poor inhibition.

67Ultimately, Ms Mynard concludes that due to your autism spectrum disorder, you lack awareness of social cues and experience difficulty with reasoning, failing to recognise the impact of your offending on the victims.

68I am satisfied that the characteristics of your autism spectrum disorder, including impaired emotional regulation and reasoning skills, combined with poor inhabitation, would have contributed to your offending behaviours. I conclude that these mental health impairments meant that you did not fully understand the gravity of your conduct or its moral implications, contributing to a continuation of your offending. The principles of Verdins operate to reduce, to some degree, your moral culpability for your offending and the role played by general deterrence.

69As highlighted by the prosecution, however, there is evidence that you were aware of the wrongfulness of your conduct, including by taking steps to conceal your offending. I am not satisfied that your impairment was such that you were not aware that your conduct over the two year period was very wrong. While I am satisfied that your cognitive and mental health impairments contributed to your offending by impairing your ability to reason and to consider the consequences of your actions, I am not satisfied that these impairments caused your offending conduct or are of such severity to eliminate the need for general deterrence.

Burden of imprisonment

70Another matter relevant in mitigation of sentence is the likely burden of your imprisonment. This is your first experience of custody and it is likely to be an isolating one. In addition to the impact of your autism spectrum disorder on your ability to navigate social interactions, you have also been diagnosed with a major depressive disorder. In her report Ms Mynard expresses the opinion that your mental health and 'multiple complex needs' are likely to deteriorate in custody, enlivening limb 5 of Verdins, in further moderation of your sentence.  I have regard to the additional burden of your imprisonment in moderation of your sentence.

Prospects of rehabilitation

71I now turn to assess your prospects of rehabilitation. As stated, you have no prior criminal history.  After you were charged with this offending you continued to live with your mother and have complied with strict bail conditions for the past 20 months. You continued in employment, working on a casual basis, until recently. These are all matters to your credit. I also note that you have the ongoing support of your mother.

72You have been assessed by Ms Mynard as posing a moderate risk of reoffending and I accept that your experience of custody will be a salutary one.  Your future prospects of rehabilitation will depend, in large part, upon your engagement in treatment and counselling to improve your insight into the motivations for your offending and its impact on the victims. At present, I assess you have reasonably good prospects of rehabilitation. However, participation in a sex offender treatment program is clearly warranted. The sentence I impose must operate to deter you from future offending of this nature while accepting that specific deterrence is also moderated to a degree by reason of your diagnosed autism spectrum disorder.

73You were a youthful offender at the time of this offending, between the ages of 21 and 23. The rehabilitation of youthful offenders is an important sentencing objective, however, the weight that attaches to youth diminishes the more serious the offending. This was clearly serious offending, however, I have had regard to your youth in sentencing you, particularly in fixing an appropriate non-parole period to facilitate your prospects of rehabilitation.

Other sentencing considerations

74In cases involving the sexual abuse of children, the sentencing principles of general deterrence, just punishment and denunciation are considerations of great weight. For the reasons I have given I accept that these considerations are moderated to some degree by the impact of your autism spectrum disorder and other identified cognitive impairments.

75In sentencing you for this offending, I have regard to the fact the offence of sexual penetration of a child under 12 carries a standard sentence of 10 years’ imprisonment. The standard sentence applicable to the offence of sexual penetration of a child under 16 is six years’ imprisonment and the standard sentence for the offence of sexual assault of a child under 16 is four years’ imprisonment. I must apply the provisions governing the standard sentence scheme set out in ss5A and 5B of the Sentencing Act 1991 when sentencing you for these offences.

76The standard sentence is intended to represent the sentence for an offence in the middle of the range of seriousness, taking into account only the objective features of the offence. The standard sentence scheme does not permit two-stage sentencing and I am not required to separately classify the objective gravity of the offending. The seriousness of the offence must still be assessed in the conventional way, taking into account both objective gravity and moral culpability.[7] The standard sentence, like the maximum penalty, is one factor I must take into account.[8]

[7]Brown v R [2019] VSCA 286; (2019) 59 VR 462, 479 at [55] (‘Brown’)

[8]Clarke (a pseudonym) v The Queen [2022] VSCA 89, [27], citing McPherson v The Queen [2021] VSCA 53, 31 (Priest and T Forrest JJA)

77I am also obliged to disregard sentencing practices that existed prior to the introduction of standard sentencing,[9] although the principles found in those cases remain of relevance.[10]

[9]Sentencing Act 1991, s 5B(2)(b)

[10]Brown, [4]

78I have had regard to the comparative cases provided by your counsel.[11] While the decisions to which I was referred provide broad guidance, particularly where Verdins principles have been applied when sentencing offenders diagnosed with an autism spectrum disorder, there are a number of distinguishing features which I note.

[11]DPP v Cleve (a pseudonym) [2023] VCC 580; DPP v Crispo [2023] VCC 1269; DPP v Miller [2019] VCC 96; Cooke v The Queen [2021] VSCA 70; DPP v Pennington (a pseudonym) [2019] VCC 1700; DPP v Matthews [2019] VCC 1407; DPP v Franklin (a pseudonym) [2021] VCC 1955

79In the case of DPP v Cleve (a pseudonym),[12] although the offending spanned seven years, some of the offending in that case occurred when the accused was under the age of 18, and as such, delay played a significant role in moderating the sentence. In that case and in all the other cases to which I was referred, there was only one victim. In contrast, the sentence I impose must reflect your offending against two separate victims. In the case of Cooke, the offender was sentenced for one charge of sexual penetration of a child under 16, whereas here you are to be sentenced for multiple instances of offending, including a rolled-up charge and a course of conduct charge.

[12] [2023] VCC 580.

80Because more than one of the offences for which I am sentencing you is a standard sentence offence, I must fix a period of at least 60 per cent of the head sentence, unless it is in the interests of justice not to do so.

81The instinctive synthesis involved in sentencing still requires a balancing of many factors, including the nature and objective seriousness of your offending, your moral culpability, as well as your personal circumstances and the matters to which I have referred in mitigation of sentence.

82The serious offender provisions also apply to these charges and once sentenced to a term of imprisonment on Charges 1 and 2, you stand to be sentenced as a serious sexual offender for the remaining charges pursuant to s6B of the Sentencing Act 1991. Pursuant to s 6D of the Act, in determining the length of any sentence imposed on the remaining charges, I must regard the protection of the community as the principal purpose for which the sentence is imposed. It is not suggested, and nor do I consider it appropriate in this case, that a disproportionate sentence be imposed to achieve the protection of the community.

83Pursuant to s 6E of the Sentencing Act 1991, the term of imprisonment imposed for these offences must be served cumulatively upon the sentence imposed on the other charges, unless the court directs otherwise. However, in applying this provision, I also have regard to the sentencing principle of totality, particularly for offences arising from the one event or that were otherwise proximate in time.

84As I mentioned, Charge 5, sexual assault of a child under 16, involving the second victim, is a course of conduct charge. Course of conduct charges permit the charging of more than one incident in circumstances where the complainant is unable to distinguish one act of abuse from another, given the repeated nature of the offending.[13]

[13] Harlow (a pseudonym) v The Queen [2018] VSCA 234 at [63]

85In this case the victim was unable to particularise more than one instance but said that you touched her on the vagina three to four times between the time she was eight and nine years old. Pursuant to s5(2F) of the Sentencing Act 1991, I must impose a sentence that reflects the totality of the offending that constitutes the course of conduct. However, in doing so, I must not impose a sentence that exceeds the maximum penalty for that offence.

86Charge 7, sexual assault of a child under 16, is a rolled-up charge. As such, while the one maximum penalty applies to this offence, in sentencing you on a rolled-up charge I must impose a sentence that reflects the instances of offending that constitute that offence.

87On your behalf it was conceded that a sentence of imprisonment with a non-parole period being fixed, is the only appropriate sentence in this case. However, it was submitted that a custodial term at the lower end of the range be imposed having regard to your guilty plea, admissions and remorse, and the application of Verdins principles in moderating your moral culpability and the role played by general deterrence.

88In contrast the prosecution submissions highlighted that this was serious and protracted offending which has had a significant impact on the victims. The prosecution contends that any moderation of sentence by reason of your diagnosed autism spectrum disorder should be given little, if any weight, particularly given that you knew your conduct was wrong, yet you persisted.

89I have carefully considered the sentencing submissions made by both counsel.

90In this case there are a number of competing sentencing considerations. On the one hand this was plainly serious offending with significant victim impact. Although general deterrence is moderated, the sentence I impose on you still has a role to play in deterring others from the sexual abuse of vulnerable children.

91Against this you have no prior or subsequent criminal history and weight must be given to your guilty plea, admissions and remorse, and the reduction in your moral culpability and the corresponding reduction in the role of general deterrence, for the reasons I have discussed. Additionally, in respect of Charge 4, you are entitled to a significant Doran discount in accordance with well-established sentencing principles.

92I have had regard to the serious sexual offender provisions when determining the amount of cumulation to order in respect of each charge, particularly to reflect the fact you offended against two separate victims. However, where your offending occurred on the one occasion, such as the offending on 13 November 2022, being Charges 7, 8 and 9, I have ordered a greater degree of concurrency to give effect to the sentencing principle of totality.

Sentence

93Balancing the matters to which I have referred, while having regard to the maximum penalty for each offence and the standard sentence for the relevant offences, I sentence you as follows:

94On Charge 1, sexual penetration of a child under 16, you are convicted and sentenced to three years’ imprisonment.

95On Charge 2, sexual penetration of a child under 16, you are convicted and sentenced to three years’ imprisonment.

96On Charge 3, sexual penetration of a child under 16, you are convicted and sentenced to three years six months’ imprisonment.

97On Charge 4, sexual penetration of a child under 12, you are convicted and sentenced to three years’ imprisonment.

98On Charge 5, sexual assault of a child under 16, being a course of conduct charge, you are convicted and sentenced to two years’ imprisonment.

99On Charge 6, sexual assault of child under 16, you are convicted and sentenced to six months’ imprisonment.

100On Charge 7, sexual assault of a child under 16, a rolled-up charge, you are convicted and sentenced to 18 months’ imprisonment.

101On Charge 8, sexual penetration of a child under 16, you are convicted and sentenced to three years six months' imprisonment. This is the base sentence.

102On Charge 9, encouraging a child under 16 to engage in or be involved in sexual activity, you are convicted and sentenced to 20 months’ imprisonment.

103I have imposed a sentence on each of the charges of sexual penetration of a child under 16 and on the charges of sexual assault of a child under 16 that fall below the standard sentence, having regard to the sentencing benefit that attaches to your guilty plea, your co-operation and admissions, the application of Verdins principles, your youth and the additional burden of your imprisonment.

104I have also had regard to the additional sentencing benefit derived from the application of a Doran discount in imposing a sentence that falls below the standard sentence for the offence of sexual penetration of a child under 12.

105I make the following orders for cumulation. I direct that:

(a)           two months of the sentence imposed on Charge 2;

(b)           three months of the sentence imposed on Charge 3;

(c)nine months of the sentence imposed on Charge 4;

(d)two months of the sentence imposed on Charge 5;

(e)one month of the sentence imposed on Charge 7; and

(f)one month of the sentence imposed on Charge 9;

be served cumulatively upon the sentence imposed on Charge 8 and upon one another.

106This gives a total effective sentence of five years’ imprisonment. I fix a non-parole period of three years' imprisonment. 

107On summary Charge 32, noting that there are no aggravating features associated with your possession of the imitation firearm, you are convicted and fined $400 on that offence.

108Pursuant to s 18 of the Sentencing Act 1991, I declare 19 days as already served under the sentence I have imposed.

109I declare that you are sentenced as a serious sexual offender on Charges 3 to 9 and direct that this be entered into the record of the court pursuant to s 6F of the Sentencing Act 1991.

110Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that the sentence I would otherwise have imposed, had you not pleaded guilty, is a sentence of six years six months' imprisonment with a non-parole period of four years, ten months.

111I make the forfeiture orders sought by the prosecution, noting that they are not opposed.

112Finally, your offending attracts the provision of the Sex Offenders Registration Act 2004, and you are a registrable offender. You are required to comply with reporting obligations under that Act for life, having been sentenced for two or more Class 1 offences under that Act.

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