Director of Public Prosecutions v Drake (a pseudonym)
[2021] VCC 703
•27 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROGER DRAKE (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 May 2021 | |
DATE OF SENTENCE: | 27 May 2021 | |
CASE MAY BE CITED AS: | DPP v DRAKE (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 703 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL
Catchwords: Plea of guilty – three charges of sexual penetration of a child under 16 years – related summary offence of contravening a Family Violence Intervention Order
Legislation Cited: Crimes Act 1958 as amended by the Crimes (Amendment) Act 2000 ;
Sex Offenders Registration Act 2004
Cases Cited:DPP v Amaral [2020] VSCA 290 ; O’Brien v The Queen [2014] VSCA 94; DPP v West [2017] VSCA 20; Best v The Queen [2019] VSCA 124; Lyon (a pseudonym) v The Queen [2019] VSCA 251; Schembri v The Queen [2020] VSCA 217; Jenkins v The Queen [2021] VSCA 65; R v Verdins [2007] VSCA 102
Sentence: Total effective sentence of 3 years and 9 months imprisonment with a non-parole period of 2 years and 3 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Grant | Office of Public Prosecutions |
| For the Accused | Ms M. O’Brien | McFarlane Criminal Lawyers |
HER HONOUR:
Introduction
Plea of guilty and Maximum Penalty
1Roger Drake[1], you have pleaded guilty to one charge of sexual penetration of a child under 16 (this is a rolled-up charge representing six occasions of penile-vaginal penetration); one charge of sexual penetration of a child under 16 by digital-vaginal penetration; and one charge of sexual penetration of a child under 16 (by penile-oral penetration). The maximum penalty for each of these three offences is 10 years imprisonment.
[1] A pseudonym.
2You have also pleaded guilty to the related summary offence[2] of contravention of a Family Violence Intervention Order. The maximum penalty for that offence is 2 years imprisonment.
[2] The Prosecution Opening refers to a second summary offence; this was not proceeded with.
Circumstances of the Offending
3The circumstances of your offending are as follows. These were set out in the Prosecution Opening, dated 29 March 2021. That document was tendered on the plea and became Exhibit A. It is attached to, and forms part of, these reasons. I will not repeat it all here but will summarise some of the facts giving rise to your offending here.
4You were between 25 and 27 years old at the time of these offences. You lived with your parents in regional Victoria. The victim in your case, who I will refer to as 'Julia Holland’[3] for the purposes of these reasons, was between 13 and 14 years old, at the time of your offending against her. She lived with her family on a nearby farm in rural Victoria.
[3] A pseudonym.
5You shared an interest in hunting. Julia’s father was a member of a hunting group in his local area. Julia would go shooting with her father about every second weekend during the hunting season. You joined them.
6Some time prior to your offending Julia sent you a message via social media about a deer you had shot. You exchanged phone numbers and began to talk regularly. That is how the relationship commenced. You convinced Julia to keep it a secret.
7In late November 2015 Julia and her father attended a hunting breakup celebration on a rural property. You were there. She was 13. You exchanged messages during the event and discussed having sex for the first time. You arranged to meet at Julia's swag during the night.
8You went to Julia's swag later and kissed her and held her for a short time before placing a condom on your penis and inserting it into her vagina. She asked you to stop and you did. This is the first incident charged under cover of Charge 1: sexual penetration of a child under 16.
9The next occasion was at a time between December 2015 and December 2016 after a hunting trip on the property belonging to a friend. You went for a walk to a lookout together and discussed having sex. You returned to the campsite and you rolled out your swag in the back of your ute. You put your penis into Julia's vagina briefly until she asked you to stop. She told you it was hurting her.
10The third occasion, that comprises the events covered by Charge 1, was between December 2015 and December 2016 when you were staying with Julia's family at their home in the country. The family had set up a bed for you in the lounge room. You exchanged messages with Julia and she came out of her room to meet you. After kissing for a time, you put a condom on your penis and inserted your penis into Julia's vagina. You continued to penetrate her until you ejaculated into the condom.
11The fourth occasion was on another hunting trip. You were with Julia in your car. Julia was sitting in the front passenger seat; you got out and went around to the passenger side of the car and kissed her. You turned her around and penetrated her vagina with your penis. You continued to penetrate her for a short time.
12On another occasion between the same dates you again slept in the lounge at Julia's family home. During this event you touched Julia's vagina and inserted your fingers, while she touched your penis and masturbated you. This event gives rise to Charge 2: sexual penetration of a child under 16.
13As part of the same incident you placed a condom onto your penis and inserted it into Julia's vagina. This concluded with your ejaculation into the condom you were wearing. This event gives rise to the fifth event of penile vaginal penetration charged under Charge 1.
14On another occasion sometime before 28 November 2015 you and Julia were driving in a car. She placed her hand on your penis and then put her mouth on your penis and allowed you to penetrate her mouth while you were driving. This event gives rise to Charge 3 on the indictment.
15The final occasion relevant to Charge 1 was a time shortly before 21 December 2016 when you were at Julia's house. She had injured her leg and was on crutches. The family had offered you a bed to sleep in the lounge room. You sent Julia a message inviting her to join you in the lounge room. She said no because her leg was hurting. She then relented and joined you there. You penetrated her vagina with your penis without using a condom.
16The Prosecution Opening discloses a chain of events that led to the detection of your offending. Briefly, another woman, with whom you had had or were having a relationship, and who claimed to be pregnant with your child, made contact with Julia. This exchange led to her parents speaking to Julia's parents about the relationship.
17These conversations led to others and on 28 March 2017 Victoria Police spoke to the complainant. She denied that she had been involved in a sexual relationship with you. Later, she would tell investigators that she lied because she and you had agreed to protect one another.
18On 31 March 2017 Julia's mother applied for an intervention order to prevent you from having contact with her. Despite the order, you continued to make contact with each other. This gives rise to your plea to the related summary charge of breaching a Family Violence Intervention Order.
19On 20 September 2018 Julia told Police about the details of her relationship with you.
20I note that many people became involved when information about the relationship between you became known. No doubt the matters surrounding that period were very important to those involved, however, apart from giving me some context, they are not matters that assist me to arrive at an appropriate sentence in your case, other than to say that it is a feature of your offending that you demanded secrecy from the complainant and that you denied the offending for some time. You will be sentenced for the offences you committed in their appropriate context.
21On 24 November 2018 you were arrested and taken to the local Police station. You answered questions in a Police interview. You agreed that you knew Julia. You described her as like your, 'little sister'. You denied having a relationship with her. You said that the mother of Julia, 'hated you to death', and that if anything had happened you would have confessed it. You admitted you stayed in Julia's home with her family but denied engaging in sexual activity there.
22I also note that earlier, Police had asked you about contact with Julia in relation to the breach of the Family Violence Intervention Order. You denied operating an Instagram account Police had linked to you. Police became aware later that the Instagram account had been deleted. It had your photo as the profile picture. You denied contacting Julia.
23I note that I have disregarded paragraphs 66 to 73 of the Prosecution Opening given that the charge related to those matters was not proceeded with.
Uncharged acts
24I note that paragraphs 28, 34, 35, and 36 of the Prosecution Opening allege, 'Uncharged acts' as 'Tendency'. I have not taken those events into account as no part of your counsel's argument pleaded that the charged events were isolated incidents. I put that information to one side. They are, given the way the plea was conducted, effectively irrelevant.[4]
[4]DPP v Amaral [2020] VSCA 290 at [40].
Procedural history
25Originally, you were charged with breaching the Family Violence Intervention Order. The date on the charge that proceeded was 25 September 2018.[5] On 20 January 2020 the indictable charges followed. Your matter proceeded through the Magistrates' Court and on 11 June 2020 you were committed to stand trial in this Court.
[5] An earlier date of 17 July 2017 is noted in the Prosecution Opening.
26Your case went through a number of hearings in this Court during the latter part of 2020. There were issues with your representation and with funding. Originally, a hearing to conduct preliminary cross examination was listed and five witnesses were requested. The hearing date was listed on 29 January 2021. You changed your representation and by 28 January 2021 the Prosecution had accepted a plea offer; the preliminary hearing was vacated, and the plea listed on 30 April 2021.
27I note that you offered to plead guilty before any witness was cross-examined. The prosecutor submitted that while your plea was not at the earliest possible opportunity, your plea is at a relatively early stage in the proceedings. I had carriage of the matter during the emergency case management phase. I note that once you had your current advisors you (and they) moved with alacrity to settle your plea. Those matters are important and will be taken into account.
Nature and Gravity of the offending
28I will now assess the nature and gravity of your offending.
29First, the age gap between you and Julia was approximately 11 years. Compared to some cases the age disparity is not particularly high, however, you were entirely located in the adult world. She was at school. You belonged to completely different cohorts. You were at very different life-stages, or should have been.
30Next, there was the breach of trust. You were a close friend of Julia's father. You socialised with him. You accepted hospitality from Julia's family. You stayed the night as a guest there on more than one occasion. Julia's mother described you as like a son or brother. You offended against Julia in her home, where she ought to have been safe.
31The period over which your offending took place (approximately a year between 28 November 2015 and 31 December 2016) was relatively protracted.
32Julia's consent, given her age, was only apparent and not real. Julia's consent to have sex with you must be seen in the context of the disparity in your ages; to be clear, it is not a mitigating feature of your offending that Julia apparently consented or that she apparently actively sought out your company.
33That said, it must also be acknowledged that at least ostensibly there was some mutual respect and affection within this unlawful relationship. This might differentiate it from an arrangement of pure sexual exploitation of a young person. Julia notes times when she asked you to stop the sexual activity and you did. That said, it may be that the emotional involvement that is clear from the materials might negatively impact upon Julia not only at the time (she was clearly conflicted about making a complaint against you) but in the future.
34Next, I note that you insisted that the relationship be kept a secret. This shows that you understood it was unlawful. This request, and the circumstances of the relationship, put Julia in a terrible position. She was too young to carry a burden like that secret.
35Next, the relationship persisted, even after an intervention order was made. Again, that contact was mutually sought and obtained but you are the adult and she the child.
36Charge 1 is a rolled-up charge encompassing six occasions of sexual penetration; I have had regard to the period over which the offending occurred and the totality of the harm that is encompassed in that Charge.
37I acknowledge the law's recognition that sexual offences cause appalling and sometimes irreparable psychological and physical harm to their victims. Although Julia did not use her opportunity to write a victim impact statement, I sentence you on the basis that there is serious ongoing harm to her, as the result of what you did.
38I have taken these matters into account in trying to determine the right sentence for you.
Personal Circumstances
39I will now turn to your personal circumstances. You were born in November 1989; you were between 25 and 27 years of age at the time of the offending, and you are now 31. During the time of your offending you lived with your mother and stepfather.
40Your biological father left your mother when you were 10 months old, having been physically violent to her. You formed a strong bond to your first stepfather who was tragically killed in a road accident when you were 11 or 12 years old. You still suffer grief from this loss. Your mother cared for you, having been severely affected by her husband’s death, both emotionally and financially.
41Your mother re-partnered; your more recent stepfather is a disability pensioner (he currently suffers from inoperable cancer) and your mother is his full-time carer. She has faced significant difficulties in caring for you, financial and otherwise.
42You completed Year 12 at school. Significantly, you were bullied as a student on account of your partial Sri Lankan heritage.
43You have demonstrated a solid work ethic; you work as a concreter in construction and you have done so since leaving school.
44You developed a love of the bush; of fishing and camping and hunting.
Psychological Report of Pamela Matthews
45A psychological report authored by Pamela Matthews, psychologist, was tendered on your plea and became Exhibit 3. I have taken its contents into account.
46Ms Matthews notes that you present with a history of attachment loss and disturbance and a history of being bullied in your formative years. She finds that the disruption of your relationships in your early years may have contributed in some part to your difficulty with establishing stable attachments in your adulthood and engaging in what she calls, 'boundary violations'.
47She finds you present with an 'adjustment disorder,' associated with your legal case, that you are currently moderately depressed, in particular in relation to your fear of imprisonment. Ms Matthews notes your past history of suicidality; three attempts in all, the first at age 16 and twice during 2015 in relation to the matters now before the court and to local gossip. When you were charged with these matters you were placed on suicide watch at a regional hospital. You continue to report suicidal thoughts; three days before Ms Matthews authored her report you wrote her an email and said you did not think you, 'could do this anymore.' Ms Matthews called Police in order to get them to do a welfare check.
48Ms Matthews indicates that there is at least some partial indication of minimisation of your conduct, and some difficulty with understanding the seriousness of the behaviour that you engaged in with Julia. I note that throughout the period of the resolution of your case you did not, according to your counsel, tell your family or your new partner about the logical consequence of the conclusion of your case, that is, you have not let your family know that this plea would conclude with your imprisonment. Your mother, stepfather and current partner came to the plea hearing. It seems that they were told on the day of the plea, or very soon before it.
49On your plea it was put, and no issue was taken by the prosecution, that limbs five and six of R v Verdins were engaged; that is based on the report your current mental state may deteriorate as a result of your imprisonment, moreover your mental state will make a period of imprisonment more burdensome upon you than upon a person not suffering from such conditions.
50I have taken that into account, to some degree; some of your suffering is clearly due to long-standing mental health problems, but some of it seems to be manifest in relation to your legal predicament that you have, apparently, only confronted recently.
Impact on Victims
51I am obliged to take into account the impact of your offending on your victims. In this case, Julia's mother wrote an impact statement and I take its contents into account. She feels (wrongly, by the way) that she has fundamentally failed her daughter. Julia did not file a victim impact statement, but I am guided by the authorities that say I must take into account the presumed harm that has been imposed upon her. Julia and her family were entitled to expect you to behave responsibly towards her, a child of 13 or 14 years old. I take into account the harm that has been inflicted on Julia as a result of what you did.
Matters in mitigation
Plea of guilty
52First, you pleaded guilty. You did not cross-examine any witness in this case. This is important. You spared all the witnesses, but particularly Julia, from having to come to court and answer questions. This is a very significant matter to be taken into account in your case.
53Moreover, Julia, for reasons that are clear in the materials, and which are entirely understandable, at various stages, denied that you had been offending against her. She is blameless for that, but nevertheless it would have made the prosecution's case against you somewhat more difficult to prove at trial. So the particular value of your plea in this regard is going to be recognised in your sentence.
54Originally you denied the offending. However, I will allow that your plea contains an aspect of remorse within it. Moreover, at a time when there is a significant backlog of trials to be heard in this Court you have taken your case out of that very long list. This is important; it will be taken into account on your sentence.
Prior good character
55I will sentence you as a person of prior good character. On the plea, a bundle of character references was tendered and became Exhibit 2. Your mother speaks of her complete devotion to you, and, of her reliance on you for practical support. I accept that worry about her predicament will weigh upon you in gaol. Your football coach and fellow player in the local footy club states that you have undertaken significant voluntary work for the club and notes his appreciation of your role in getting the club to thrive again. A family friend speaks of you being a sought-after concreter in your community and that you are well respected and take pride in leading a local work team. Other witnesses talk about your strong work ethic and witnessing how you care for your animals amongst other things.
56On the day of your sentence, your counsel drew my attention to media reporting of this court since the sentencing hearing and submitted that it ought be taken into account as part of the instinctive synthesis. I understand that headlines in your local community have been colourful and identified your small town, which only has a handful of houses, by name. I recognise that this has an impact on you in a way that would not apply as much in a metropolitan landscape and I take it into account.
57You come before the court with no prior criminal history. This is an important matter and I take it to account
Prospects for rehabilitation
58I am obliged to have regard to your prospects of rehabilitation. Ms Matthews’ report speculates about whether you have a paraphilia; from what I can gather Ms Matthews is unable to reach a conclusion on the basis of information available to her. It seems that, circumstantially, you have had otherwise adult relationships with adult women. You are about to endure some punishment for what you did, and I expect the specific deterrence of that to be relatively powerful in your circumstances. You have the loving support of your family, an excellent work history and have proved yourself an otherwise valuable member of your local community. All these matters are important and I conclude that your prospects of rehabilitation after sentence are very good.
Current sentencing practices
59On the plea, I was referred to some cases that contain some of the principles to which I have had regard in imposing sentence on you.[6] They were not put forward as comparative cases but I have read them and I have taken these and others into account in determining the broad sentencing landscape for these offences. I note that there is a very wide range of sentences that are imposed in this category of offending. This presumably reflects the very wide range of circumstances that can be captured by this particular charge. No case is exactly like yours. I have found it is not easy to find where your case fits into the broader landscape. I have looked at other cases and incorporate those impressions into my attempt to fix an appropriate sentence for you.
[6] O’Brien v The Queen [2014] VSCA 94; DPP v West [2017] VSCA 20; Best v The Queen [2019] VSCA 124; Lyon (a pseudonym) v The Queen [2019] VSCA 251; Schembri v The Queen [2020] VSCA 217; Jenkins v The Queen [2021] VSCA 65.
Covid-19 and sentence
60As I deliver this sentence the Victorian Health authorities are contemplating a further lockdown to meet an outbreak in Melbourne’s North. Case numbers are climbing. The anxieties and uncertainty of this time persist. It is clear that for some time prisoners in Victoria have suffered the anxiety of not knowing if or when the virus will enter the prison system. Access to visits and programs has been significantly curtailed. You will be serving your sentence in that more severe and uncertain climate and I take it into account.
Sentencing principles
61I now address the relevant sentencing principles. I must apply the proper sentencing principles in your case. General deterrence is a central feature of this sentence: how I sentence you should deter others from offending in a similar way.
62Through me and this sentence your behaviour is denounced: adults who think they can have consensual sex with children and do so must understand that they cause significant harm and will be punished. This sentence will punish you for what you did. I regard there as being some role for specific deterrence in the circumstances, that is, that you have until recently denied the offending and, it would seem, failed to comprehend its seriousness to some degree.
63You breached an intervention order, whose purpose was to protect this young person. There will be some cumulation on the sentence for that charge. There will be some cumulation between the charges to reflect that there was repeated offending over some months. I note that the content of the digital penetration the subject of Charge 2, and one of the penetrative acts covered by Charge 1, occurred close in time and circumstance and I will take that into account in the way I cumulate this sentence.
64I note that the standard sentencing regime does not apply in this case because of the timing of the offending.
Serious Sexual Offender Provisions
65Because I will sentence you to a term of imprisonment on Charges 1 and 2, you fall to be sentenced as a serious sexual offender on Charge 3. The prosecutor did not submit for a disproportionate sentence in your case though I must consider the protection of the community from you as the primary sentencing purpose for this charge. I recognise that the presumption of concurrence is displaced in relation to that charge.
66Mr Drake, you can stand now while I deliver the sentence.
Disposition
67Roger Drake, on Charge 1 you are convicted and sentenced to a period of imprisonment of 36 months.
68On Charge 2 you are convicted and sentenced to a period of imprisonment of 4 months.
69On Charge 3 you are convicted and sentenced to a period of imprisonment of 9 months. I note for the record that your sentence on this charge is as a serious sexual offender.
70On the related summary offence of breaching a Family Violence Intervention Order you are convicted and sentenced to a period of imprisonment of 4 months.
71I direct that 2 months of the sentence on Charge 2, 5 months on the sentence on Charge 3, and 2 months on the related summary offence will be served cumulatively upon one another and upon the sentence on Charge 1, resulting in a total effective sentence of 45 months or 3 years and 9 months' imprisonment.
72I direct that you serve 27 months (or 2 years and three months) before becoming eligible for parole.
73I note there is no presentence detention to be declared.
74Pursuant to s6AAA of the Sentencing Act, I declare that had you not pleaded guilty but been found guilty after trial, I would have imposed a term of imprisonment of 5 years and 1 month, with a minimum non-parole period of 3 years and 1 month.
Sex Offenders Registration Act
75What remains is for me to recognise that as sexual penetration of child under 16 is a, 'Class 1' offence for the purpose of the Sex Offenders Registration Act 2004 and that being the case of your having been convicted of more than two Class 1 offences, the mandatory reporting period will be for life.
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