Director of Public Prosecutions v Ellard
[2016] VCC 882
•24 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00579
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THOMAS ELLARD |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 June 2016 | |
DATE OF SENTENCE: | 24 June 2016 | |
CASE MAY BE CITED AS: | DPP v Ellard | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 882 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence-sexual penetration of a child under 16
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:
Sentence: s.75 Adjournment for 12 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Vella | Solicitor for Office of Public Prosecutions |
| For the Accused | Mr G. Balot | Balot Reilly Solicitors |
HIS HONOUR:
1 Thomas Ellard, on 23 June you pleaded guilty to one count of sexual penetration of a child under 16 years. The maximum penalty for this offence is 10 years’ imprisonment.
2 Tendered as Exhibit A on the plea was a prosecution plea opening. In summary, as a child aged 15 and a student in Year 10 at St Bernard’s College, Essendon, you befriended the brother of the complainant, who was also a student at St Bernard’s College. On an evening when you stayed over at your friend’s home, on a date unknown between 27 March 2010 and 11 April 2010, you went into the complainant’s bedroom, she being the sister of your friend, and you convinced her to perform oral sex on you. At the time of this offence the complainant was 13 years of age. It is common ground that at this time you regarded each other as friends and more likely boyfriend and girlfriend.
3 From a perusal of the depositions, which includes your record of interview, it appears that shortly after your stay at the complainant’s home your friendship deteriorated, and this distressed the complainant. The circumstances surrounding how this came about are unclear as you and the complainant have different recollections of them.
4 Tendered as Exhibit B on the plea was the complainant’s victim impact statement. It is a lengthy document that sets out the trials and tribulations which she has suffered since the event which founds the charge. There is no doubt that she has been adversely affected by your conduct. It is unclear to me how all of the problems that she has experienced, and treatment that she has received, can be solely attributable to your conduct towards her.
5 The complainant did not complain to police until April of 2014, some four years after the event by which time you had attained the age of 19 years. You were interviewed under caution in May of 2014, and gave open and responsive answers to the investigators’ questions.
6 For reasons not explored during the course of the plea, you were not charged until September 2015, by which time you were 21 years of age.
7 The consequence of the complainant’s delay in complaining meant that this charge could not be heard in the Children’s Court, and should you have been dealt with as a child then the sentencing regime set out in the Children, Youth and Families Act 2005 would have been applicable to you. The delay in charging you after you were interviewed has had the consequence that you are not a young offender.
8 There can be no criticism of the complainant in her delay in complaining. She was but a child at the time of your offending. She was adversely affected by your conduct. A process of maturation had to take place before she was in a position to complain about your conduct.
9 The fact of delay, however, has brought about the circumstances where you fall to be sentenced as an adult for a crime that you committed as a 15‑year-old child.
10 Should you have been sentenced as a child, then the principle of general deterrence would have had no application in the sentencing exercise, and significant weight would have been given to rehabilitation.
11 You offended as a young and immature child, and your level of culpability must be assessed against that fact. Whilst I will deal with this matter later in these reasons, there is ample evidence of your maturation in the years since your offending, and that you are, as is set out in the references that were tendered as Exhibit 1, an honest and sensitive young man who is hardworking and respectful to women.
12 You were born in Western Australia and raised there until your father’s employer transferred him to Victoria in 2010. Together with your father you travelled to Victoria, and you were enrolled in Year 10 at St Bernard’s College, Essendon. Your mother and sister remained in Perth whilst your mother attended to the sale of the family home and other matters. Your mother arrived in Melbourne in April of 2010 and became very ill and was hospitalised, and after being released from hospital took some four to six months to recover. As a 15 year old you found yourself in a new town, at a new school, and it is plain that life in your first 12 months in Victoria must have been hard for you.
13 A family friend, Mr Ronald Villaflor, the author of a reference that forms part of Exhibit 1, travelled from Western Australia to give evidence on your behalf on the plea. He was a most impressive witness. He described you as honest, respectful to him and his wife, and that you have always been respectful to women in his presence. He swore that your open and frank answers to the police in your record of interview were indicative of your honesty. He described you at the time you left Western Australia as a scrawny 15‑year-old being light-framed and small. I accept Mr Villaflor’s evidence without reservation.
14 You left St Bernard’s College at the end of Year 10 and commenced studying at Sports Education and Development Australia (SEDA). There you undertook three years of study, and on completion you obtained your VCE. Based on your performance at SEDA you were able to enrol in Victoria University to study a Bachelor of Sport Science (Physical Education) (Secondary). Your intention on enrolment and now is to pursue a career as a teacher specialising in physical education and sport.
15 You were in your first year at Victoria University when you were interviewed by police. Suffice to say their introduction into your life came as a shock, as did the fact that they were investigating you for a sexual offence committed when you were 15 years of age.
16 You are in a relationship of 15 months’ standing and have a supportive partner who has provided a reference for you which forms part of Exhibit 1.
17 You have always been a talented footballer, and you presently train with the Richmond Football Club however, you play for the Sunbury Football Club.
18 You were charged with the present offence while in your second year at university. The Chief Commissioner of Police immediately revoked your Working with Children status, and although this adversely affected your ability to work in the future at your chosen profession you continued your studies and completed exams at the end of 2015 and passed. However, you have not returned to your studies, and have worked as a labourer since that time.
19 Whilst at SEDA you received an award for being the student who had the highest number of hours directed towards developing community sports programs principally directed at football clinics. These programs raised funds for the Peter McCallum Hospital.
20 You desire to return to your studies to obtain your qualification from Victoria University, and thereafter pursue two years of further tertiary study to obtain your Bachelor of Education degree so that you might teach.
21 This prosecution has put your life on hold.
22 Taking into account the contents of each of the references contained in Exhibit 1, it is plain that you have matured into an honest, likeable, hardworking and mature young man who is respectful to women and one who has contributed to the wider community. I have trouble in understanding how the application of the principle of general deterrence in your case can possibly meet the purposes for which that principle is applied in the exercise of the sentencing discretion. In my opinion specific deterrence has no application in your case.
23 You have no prior criminal record and no matters pending. Save for the act committed as a child, you are today a young man of good character. You are a young man who has his entire life ahead of him, and your chosen profession has been put in jeopardy by an act committed when you were but a child.
24 The offence of sexual penetration of a child under 16 years is a serious offence. It is punishable by a term of imprisonment of 10 years. However, in my view the circumstances of your case are exceptional.
25 Mr Mandie of counsel, who appeared on your behalf, submitted that a good-behaviour bond without conviction was the appropriate disposition in your case. Mr Doyle of counsel, who appeared on behalf of the Crown, submitted that such a sentencing disposition was open. It suffices to say that I agree with each of those submissions. Please stand.
26 Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, pursuant to s.75 of the Sentencing Act 1991 I adjourn these proceedings for a period of 12 months and release you on you giving an undertaking that you will be of good behaviour during the period of the adjournment, and that you attend before the court if called on to do so during the period of the adjournment.
27 Will you please come out of the dock and come down to the prosecutor's end of the Bar table please, there is a document for you to complete.
28 MR BALOT:. Might I assist my client, Sir?
29 HIS HONOUR: Sorry?
30 MR BALOT: Might I assist my client with the document?
31 HIS HONOUR: My associate will be able to do that for him I think.
32 MR BALOT: If it please, Your Honour.
33 HIS HONOUR: Mr Ellard, would you stand please? You may sit behind or stand behind your instructing solicitor. The bond that I have placed you on is without conviction. It lasts for a period of 12 months. You are to be of good behaviour during that period of time. If you break the conditions of this undertaking, you may be punished for any offence that has been adjourned on you agreeing to enter into this order and you may be punished for failing to be of good behaviour.
34 In addition to being punished for either of the above, you may also be fined. What that means is this, that if you breach this bond by any criminal conduct, you will be punished for that criminal conduct. You will come back to me and I will resentence you. Do not breach this bond.
35 Now a copy of the court order, together with a copy of the adjourned undertaking will be provided to counsel and a copy for your own records. I will have forwarded to your instructing solicitors my reasons for sentence, which you should retain as part of your records because it sets out accurately in my view, the circumstances of this matter. You may be seated.
36 Now there is one further matter. The Crown makes application for a forensic sample order under s.464ZF of the Crimes Act 1958, I refuse that application in the exercise of my discretion. I do so for the following reasons. The respondent is now an adult. The offence to which he pleaded guilty was committed when he was a child and since that time he has not reoffended. I find that he has matured in the years since his offending and there is no real likelihood that he will reoffend in the future. In my view, it is not in the public interest to grant the order.
37 MR VELLA: As Your Honour pleases.
38 MR BALOT: As Your Honour pleases.
39 HIS HONOUR: Finally, I would like to thank each of the two families and particularly the complainant for the restraint which has been shown during the course of these proceedings. I will now stand down until 2.15.
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