Director of Public Prosecutions v Dole
[2016] VCC 913
•01 July 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00599
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Patrick DOLE |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 28 June 2016 | |
DATE OF SENTENCE: | 01 July 2016 | |
CASE MAY BE CITED AS: | DPP v Dole | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 913 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Sexual penetration of a child under 16 years of age (1 charge)
Legislation Cited:
Cases Cited:
Sentence: s6AAA declaration ….
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr. D. Cordy | Office of Public Prosecutions |
| For the Accused | Mr. M. Williams | Victoria Legal Aid |
HIS HONOUR:
1 Patrick Dole, you have been charged with one charge of sexual penetration of a child under sixteen years of age. This charge carries with it a maximum sentence of imprisonment of ten years.
2 The circumstances of your offending are not in issue and are set out in the Prosecution’s Summary which I will append to my sentencing reasons.
3 The act the subject of this charge involves you at the age of nineteen, vaginally penetrating your 12 year old victim with your penis. Two other acts of similar vaginal penetration occurred in the course of the liaison with your victim which gives rise to the charge to which you have pleaded guilty. That act is put by the prosecution as being representative of those two further acts.
4 Whilst in fixing your sentence I give those acts due weight, I am satisfied that I should also take into account the fact that they occurred on the same day and as part of a continuing course of conduct over a period of hours.
5 In her VARE statement your victim denied that the sexual penetration which gives rise to these charges occurred.
6 To your credit, in your Record of Interview you made full admissions with respect to your behaviour. It is conceded by the prosecution that those admissions form the basis of the charge to which you have pleaded guilty.
7 I am satisfied that the fact that you have made such significant admissions should be accorded significant weight in the sentence which I impose, as this behaviour speaks strongly in favour of your remorse and your prospect for rehabilitation.
8 There is no issue that the acts the subject of these charges were consensual. This in no way excuses the behaviour which involves serious sexual offending against a young child. Your behaviour involved serious criminality and must be denounced given your age at the time of your offending, the age of your victim and the fact that your behaviour was likely to, and I am satisfied has, damaged your victim. The severity of that damage is well illustrated by the content of the Victim Impact Statement in this case.
9 Your social history is as follows:
·You are currently twenty-one years old.
·You were educated at the Maiden Gully and Epsom primary schools. You attended Weeroona College for your secondary schooling, where you were exposed to significant bullying.
·You obtained a Year-11 VCAL pass. After leaving school you worked, for a short period, bricklaying, you attempted agency work, which proved to be beyond your capabilities and you have largely been unemployed. You hope to obtain employment as a truck driver.
10 In fixing your sentence in this instance, I am significantly influenced by the report of the clinical psychologist, Dr Aaron Cunningham, dated 30 May 2016.
11 Dr Cunningham reports that the results of testing as undertaken by him reveal:
· that you present with low general intelligence and levels of thinking and low reasoning skills which are in the extremely low range;
· that your psychological maturity was not commensurate with your age; and
· that you do not present with any tendency towards sexual deviance or paedophilia.
12 On the basis of Dr Cunningham’s assessment, I am satisfied that I should adopt the approach in sentencing you that there was probably not a huge difference between your emotional maturity at the time of your offending and the emotional maturity of your victim notwithstanding the significant difference in your respective ages.
13 In sentencing you, I must impose a sentence which is just in all the circumstances; I must have regard to the nature of your offending and the reasons for it, and the effect of your offending upon your victim.
14 I must give due weight to my responsibility to make a statement to the community that this type of behaviour involves serious criminality which will not be tolerated and that people who commit crimes of this type will receive harsh punishment.
15 Given your lack of relevant history both before and since this offending; your young age at the time of the offending and your remorse as demonstrated by your early admissions and your plea of guilty, I am satisfied that you are unlikely to re-offend and that your prospects of rehabilitation are very good.
16 While the sending of a message to other young offenders that behaviour of this type will not be tolerated is important, I do not consider in this instance that the sentence which I impose should be overly influenced by the need to send a message of that type.
17 I say this given the concession made by the prosecution that, if the matter was dealt with nearer the time that it occurred, you would have been sentenced as a young offender, and there is no issue that you present as a youthful offender for whom the prospect of being rehabilitated is important in the sentence which I should impose.
18 Notwithstanding the significant maximum penalty for this offence, I am satisfied that:
(i) Your age both at the time of your offending and now;
(ii) The admissions which you have made as to your offending and the assistance those admissions have provided to the prosecution;
(iii) Your early plea of guilty which assists not only your victim but also the community in allowing the efficient and cost effective function of the court;
(iii) The evidence from Dr Cunningham as to your level of intelligence and emotional maturity, and your current mental health;
(iv) The absence of any other relevant offending, either before or after these incidents;
all combine so as to make it inappropriate that your offending should attract a sentence which involves an immediate period of imprisonment.
19 It is put on your behalf that a sentence in the form of a Community Corrections Order is appropriate in this instance.
20 This position, in turn, is not opposed by the prosecution and I accept that position.
21 You have been assessed for such an order and have been found to be suitable.
22 Please Stand.
23 On the charge of sexual penetration, you will be convicted and placed upon a Community Correction Order for a period of three years with the following conditions:
(i) Undergo Mental Health treatment and rehabilitation as directed.
(ii) Undertake relevant offence specific treatment and rehabilitation including programs as directed.
(iii) You will undertake 200 hours of unpaid community work.
(iv) You will be required to undergo Judicial Monitoring during the period of the Community Correction Order by myself.
24 I am satisfied that the offence in respect of which you have pleaded guilty and have been convicted is appropriately categorized as Class 1 offence within Schedule 2 of the Sex Offenders Registration Act 2004. You are to be recorded as a registrable offender pursuant to the provisions of that Act for a period of 15 years.
25 You must report your personal details to the Chief Commissioner of police in accordance with the reporting conditions as set out in the document which will be served upon you shortly. I will ask your legal representative to attend to an acknowledgement of that document.
26 I will make an order pursuant to s464ZF for a forensic sample to be taken from you for placement on the DNA database. If, when a sample is sought from you, which is normally sought by way of a mouth scraping, which is not a painful procedure, you do not consent to that process, then a police officer authorised to take the sample can use reasonable force to obtain a blood sample from you. Do you understand this?
27 I will also make the disposal order sought in respect of your mobile phone.
28 But for your plea of guilty in this instance, I would have sentenced you to a period of imprisonment of 18 months.
29 I just want you to understand the consequence of the Community Correction Order. You will be required to comply with the order and any directions given to you by those administering the order.
30 If you fail to comply with those directions, you may be breached with respect to the order. The consequence of that breach will be that you will come back to me and I have a number of powers. I can re-sentence you with respect to the offence. I can continue the order or I can make no order. What would happen would be dependent upon when the breach occurred, but you should not take the chance of coming back before me with respect to this offence.
31 I take it that you are willing to comply with the order?
32 OFFENDER: Yes, sir.
33
HIS HONOUR: You understand the duration. It is a period of three years and it involves you undergoing whatever treatment and rehabilitation courses directed for you, and undertaking 200 hours of unpaid community work.
Do you understand those conditions?
34 OFFENDER: Yes, Your Honour.
35 HIS HONOUR: All right. Just take a seat.
36 MR CORDY: Just one matter, Your Honour. Does Your Honour intend that any of the treatment and rehabilitation programs count towards the unpaid work total or does Your Honour intend that unpaid work total to be a stand-alone matter?
37 HIS HONOUR: In the circumstances of the case, I am satisfied that it should be a stand-alone.
38 MR CORDY: Yes, thank you. There are no other matters, Your Honour.
39 HIS HONOUR: Yes. Now, there are some documents that need to be signed. Mr Prosecutor, with respect to the orders that have been sought, I have signed the disposal order and the s.464ZF order, so I think we have those. Yes.
40 MR CORDY: Thank you.
41 HIS HONOUR: There are no other orders, are there?
42 MR CORDY: No, they are the orders, Your Honour.
43 HIS HONOUR: Yes. I have indicated, Mr Prosecutor, that I am going to append the summary to my sentencing reasons.
44 MR CORDY: Yes, Your Honour.
45 HIS HONOUR: What we have done is, whited-out from the summary any reference to the complainant or any way that she might be identified. Perhaps what we will do is to show you the document though.
46 MR CORDY: I will check it, yes.
47 HIS HONOUR: To allow your instructor to check it.
48 MR CORDY: Thank Your Honour. Yes, that is in an appropriate form for that course proposed by Your Honour.
49 HIS HONOUR: Thank you. We will now adjourn.
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APPENDIX 1
IN THE COUNTY COURT OF VICTORIA Court Reference: CR-16-00599
AT BENDIGO Indictment No: G10223885
CRIMINAL JURISDICTION
IN THE MATTER OF Section 182 of the Criminal Procedure Act 2009
Prosecution of Patrick DOLE
SUMMARY OF PROSECUTION OPENING
| Date of Document: Filed on behalf of: Prepared by: JOHN CAIN Solicitor for Public Prosecutions 565 Lonsdale Street Melbourne VIC 3000 | Date of Document: The Director of Public Prosecutions Solicitors code: Reference: Telephone: File Number: | 28 June 2016 7539 Alexandra Hickling (03) 9603 7569 1600434 |
BACKGROUND
1. The Complainant in this matter, is a 15
year old female, who at the time of offence was aged 13, and was attending high school and living with her maternal Uncle in the Bendigo area.
2. The Accused, Patrick Mitchell DOLE, is a 21 year old male, who at the time of the offence was aged 19, and was unemployed and living in his family home in the Bendigo area.
3. In February 2014 the Complainant was introduced to the Accused at or near her high school through a mutual friend and they became Facebook 'friends' shortly thereafter. A Facebook 'conversation' (series of e-mail style private messages between the Accused and the Complainant) commenced in around February 2014 and continued until 3 June 2014[1].
[1] Refer to messages set out in the depositional material between pp94-351.
4. The Accused and the Complainant began sending each other multiple messages on most days.
5. The Complainant began confiding in the Accused about problems that she was having with a boy and the Complainant began counselling and comforting her about those issues. The messages show that the nature of the relationship shifted quickly from platonic friendship to a boyfriend-girlfriend style relationship, with the Complainant agreeing to be the girlfriend of the Accused by 3 March 2014[2]. The Accused and the Complainant would arrange meetings at a bus-stop near the Complainant's school at lunchtimes or after school at nearby playgrounds. Often other friends would be present during these meetings.
[2] Refer to message sent at 3.35pm at p 135 of' the depositional material.
6. By early March a deeper level of confidence had developed between the Accused and the Complainant when they exchanged Facebook log in details (username and password) enabling each to view the other's private messages. The Complainant and Accused told each other they loved each other. The messages were at times affectionate, and at other times sexually explicit in nature.
7. The Accused and the Complainant discussed the age difference between them at various points in their messaging.
8. On the 3rct of March 2014, the Complainant invited the Accused to her home. The Accused asked if the Complainant's father knew his age and the Complainant replied that she told her father that the Accused was 16. When the Accused asked what the Complainant's father's
reaction was, the Complainant says that her father said "just no guys over 18".[3]
[3] Refer to messages set out at p 146 of' the depositional material.
9. On the afternoon of the 4th of March 2014 the Accused invited the Complainant to come to his house for 'cute snuggles' and the Complainant and the Accused began planning for the Complainant to truant from school to visit the Accused at his home to spend a day together.[4]
[4] Refer to messages set out at pp234, and 248-279.
10. A VARE was conducted with the Complainant in the course of this investigation. The Complainant appeared to be embarrassed and perhaps afraid of getting into trouble. She denied that sexual intercourse took place between herself and the Accused. She had not initiated a complaint against the Accused. This offending came to the attention of the Central Victoria Sexual Offences and Child Abuse Team following a DHHS referral. The DHHS referral came from the Complainant's Uncle who was the Complainant's main guardian at that time, when he sought assistance from DHHS after discovering sexually explicit messages and photographs on the Complainant's social media.
11. The Crown therefore relies upon answers given by the Accused in the ROI and the Facebook messages between the Complainant and the Accused in alleging this offence.
12. The Accused stated that on the 5th of March 2014, he and a friend picked the Complainant up (ROI Q&A 27-28). He said that the day she came over was "the day we had sex. The first and last time". (ROI Q&A 59-60). He agreed that they had both arranged for that meeting to be about sex. (Q&A 63-64).
13. The Accused said when they arrived at his home they sat out the front for a while so that he could have a cigarette, and while sitting outside they hugged and kissed. (ROI Q&A 71).
14. They then went inside and lay in his bedroom for about an hour watching TV. (ROI Q&A 72) He then asked the Complainant if she wanted to try 'what we said on Facebook' (ie sex) and that she said yes and they kissed and stuff, that she put her hand on his crotch and that they pushed each other around on the bed (mucking around) and it 'got really sexual and just happened'. (ROI Q&A 76-79)
15. The Accused said he took off his shirt and the Complainant took off her clothes and then he got on top and 'we had sex'. (ROI Q&A 80-81). He said that he asked her if she wanted to, to clarify it was okay and she said it was fine. He said "Yes I was horny and she was horny and it went from, like, kissing and cuddling to putting my penis inside her [vagina].". (ROI Q&A 88-91) (Charge 1 Sexual penetration of a child under 16 years of age).
16. This charge is representative of two further occasions of sexual penetration that occurred on that same day. (ROI Q&A 96)
17. The Complainant was at the Accused's home for about 6 hours and he had a mate pick them up and drop her back in Eaglehawk. (ROI Q&A 100-102)
MAXIMUM PENALTY
18. Sexual penetration of Child Under 16 Crimes Act 1958 s45(1)(c): Level 5 Imprisonment (10 years maximum)
In addition as the Accused is being sentenced for a Class 1 offence the Accused will be subject to registration and mandatory reporting under the Sex Offenders Registration Act for a period of 15 years (Sex Offenders Registration Act 2004 s34(1)(b)(i)).
VICTIM IMPACT STATEMENT
19. A Victim Impact Statement has been made by the Complainant and will be handed up in Court.
ANCILLARY ORDERS SOUGHT
464ZF
An order for a forensic sample from the Accused pursuant to s464ZF of the Crimes Act 1958.
Disposal
Disposal is sought in relation to the Accused's Samsung mobile telephone.
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PLEA PROSECUTOR
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