Director of Public Prosecutions v Elliott (a pseudonym)
[2021] VCC 1291
•1 September 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
| SEXUAL OFFENCE LIST |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RANDALL ELLIOTT (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | June and August 2021 |
| DATE OF SENTENCE: | September 2021 |
| CASE MAY BE CITED AS: | DPP v Elliott (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 1291 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Two charges of sexual penetration of a child under the age of 16 – offending occurred 16 years ago – pregnancy and termination of pregnancy aggravating factor
Legislation Cited: Criminal Procedure Act 2009 (Vic), Clause 4A of Schedule 1; Sex Offenders Registration Act 2004 (Vic); Sentencing Act 1991 (Vic), s6B(2), s6E, s6AAA
Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Duncan [1998] 3 VR 208
Sentence:Convicted and sentenced to a total effective sentence of two years and six months’ imprisonment. Six months’ imprisonment to be served and the balance of the sentence suspended for a period of two years and six months. Section 6AAA declaration: Conviction and sentence of three years and six months’ imprisonment with a non-parole period of one year and nine months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N Batten | Solicitor for the Office of Public Prosecutions |
| The Accused | The accused appeared in person | - |
HIS HONOUR:
Introduction
1Mr Elliott[1], let me say at the outset that I intend to sentence you to two years and six months’ imprisonment but will require you to serve six months in prison and suspend the rest of the sentence for a period of two years and six months. I will now explain how I arrive at that sentence.
[1] A pseudonym.
2You have pleaded guilty to two charges of sexual penetration of a child under 16. Both charges relate to the same child. Both occurred between 1 August and 30 November 2005.
3Both charges are course of conduct charges. A “course of conduct charge” is a charge for a certain kind of offence that involves more than one incident of the offence.[2] These charges are one of those offences.
[2] Clause 4A of Schedule 1 of the Criminal Procedure Act 2009
4The first charge involves three different acts of sexual penetration: your penis into the complainant’s vagina; your finger into her vagina; and your tongue into her vagina. The second charge involves your penis into her mouth.
5For the first charge, the penetration of the complainant’s vagina occurred on numerous occasions between 1 August and 30 November 2005. For the second charge, the penetration of her mouth between those dates occurred on numerous occasions as well.
6When you committed these offences, the maximum penalty on each charge was 10 years’ imprisonment.
7This proceeding has been adjourned on several occasions. The majority of adjournments were requested by you in the hope you could save enough money to afford a lawyer. You were unable to do so.
Circumstances
8The circumstances of your offending are described in the “Summary of Prosecution Opening upon Plea”, which is Exhibit A.
9At the time of your offending, you were 22 and the complainant was 15. You are now 38 and she is 30 or 31.
10At the time, the complainant’s mother and your older brother, Jeff[3], were dating. Her mother and Jeff stayed at each other’s home from time to time. Your brother’s home was in central Victoria.
[3] A pseudonym.
11During 2005, you started living in your brother’s home.
12Over time, you looked after her because of the absence of her mother. Gradually, your attentions turned personal: the buying of gifts; saying personal things about her. In mid-2005, there was an occasion of the complainant sleeping in your bed and you and she cuddled. Thereafter, whenever the complainant stayed at your brother’s house, you went into her bed and kissed and cuddled until early in the morning, when you returned to the couch. This occurred three or four times a week.
13In early August, you first had sexual intercourse with the complainant. However, you ejaculated on the bed. This is part of the first charge.
14In September, you continued to have sexual intercourse with the complainant regularly. This happened multiple times a week. You would withdraw and ejaculate elsewhere. Frequently, you inserted your fingers in her vagina and regularly penetrated her vagina with your tongue. She performed oral sex on you. Occasionally, you ejaculated in her mouth.
15In October, the complainant discovered she was pregnant and told you. You told her mother of the pregnancy and your responsibility. You continued to meet her and have intercourse.
16On 3 November, the pregnancy was terminated. You continued to meet her but less frequently. Later in November, the complainant left her home and stayed with her friend. You continued to contact her and visit late at night. You did this regularly. You continued to have intercourse with her.
17Towards the end of 2005, you moved to north-western Victoria. Your contact with the complainant diminished and then ceased.
18On 5 December 2005, the complainant’s mother reported your relationship with her daughter to the police. The complainant was unwilling to make a statement to the police about your sexual relationship with her. She did not say who was responsible for her pregnancy.
19There the matter lay until February 2019, when the complainant reported the sexual relationship to the police. After a pre-text phone call in March 2019, you were arrested on 5 December 2019 and interviewed. Apart from saying you were just good friends with the complainant, you gave “no comment” answers to the questions asked by the police. You were charged with offences and released on bail.
Guilty pleas
20In May 2020, you pleaded guilty to the charges at a committal mention hearing in the Magistrates’ Court. The prosecution submits these are early pleas of guilty and I accept them as such.
21Your pleas of guilty are evidence of remorse. This is important.
22Your pleas of guilty have assisted the administration of justice. They have avoided the need of a trial of the charges and the costs involved. Apart from the benefit to the justice system by ending this prosecution and creating space for other cases, they relieve the complainant and others from the difficult process of giving evidence. I note the Indictment listed eleven potential witnesses including the complainant.
23Your pleas of guilty have come at a time of crisis in the criminal justice system due to the effects of the pandemic. The effects of your pleas was made clear by the Court of Appeal in the following passage from the case of Worboyes v R:[4]
“As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.”
[4] [2021] VSCA 169 at paragraph [35]
24In its judgment in Worboyes,[5] the Court quoted from an earlier case of R v Duncan:[6]
“A plea that evidences genuine remorse and prospects of rehabilitation, that is entered at the earliest practical opportunity and that saves the State a trial and the witnesses both trauma and inconvenience normally justifies a high discount.”
[5] (ibid) at paragraph [28]
[6] [1998] 3 VR 208 at 215
25I have already spoken of those factors. To them is added the considerations in Worboyes which I have just quoted. Overall, your pleas of guilty merit a very high discount of the sentences which I would have imposed if you had not pleaded guilty.
Criminal history
26Your court appearance in August 2001 is irrelevant for the purposes of these charges.
27You have led a blameless life in the succeeding 16 years.
Pre-sentence detention
28There is no pre-sentence detention.
Victim Impact Statement
29On 13 August 2020, the complainant prepared a Victim Impact Statement. She is now 30 or 31. The offences caused her to lose her youth and she has struggled since.
30It turned her against her family, especially her mother.
31You introduced her to smoking which affected her sporting performances. She was a good sportswoman, participating in various sports.
32Although she describes the sexual intercourse as rape, it is not rape in the legal sense. You are not charged with rape. I understand her to say that she was not in a position to give an informed consent because of her age and immaturity.
33News of her pregnancy spread rapidly in the small community. She was treated badly, called names, shunned until she left the area 12 months later. She was expelled from high school. After the termination of the pregnancy, she ran away from home and was estranged from her mother for a year. She still has difficulty communicating with her mother and, in August 2020, they were not speaking to each other. She has lost contact with her brother and her mother’s side of the family.
34She believes the effects of your crimes have caused her to suffer from recognised psychological disorders. To show her belief is factual, she describes the many adverse symptoms she suffers.
35She has lost four more pregnancies, two through terminations. However, she has a partner now and, in August 2020, was pregnant.
36She no longer trusts people. It takes her a long time to build up trust in someone.
37She has struggled with her weight and suffered through ill-health and the adverse reactions of others.
38She turned to alcohol and still drinks. She turned to drugs.
39It has affected her employment including the recent loss of a job through taking too many days off work.
40She has been in trouble with the law. Recently, she lost her sport coaching position, in a sport she has long loved and was good at.
41For someone at the age of 30 or 31, she paints a very depressing picture.
Personal
42You are 38.
43You were born in a town in west-central Victoria and your family lived there until you were seven. You are by far the youngest of four brothers and two sisters. When you were born, most of your siblings had left home. For much of your childhood, you considered yourself an “only child”.
44Unlike so many cases that I see, your parents never separated. Your father died five or six years ago and your mother, two years later. You had a wonderful relationship with your mother and a very good one with your father despite your view that he was a hard man with a temper. His death had a profound effect upon you.
45As the youngest by far of five boys, you looked up to them. Unfortunately, they were pretty wild and you copied them. You had idolised the brother, who had formed a relationship with the complainant’s mother. But you fell out with this brother with whom you have no contact and also other members of your family.
46When you were about 10 you were abused by an uncle. You told others of the abuse but were disbelieved. The abuse left you distrusting of others, especially with the care of your children, angry and confused. To numb these memories you drank alcohol until you realised drinking only made matters worse.
47You attended primary and secondary schools. You completed Year 11 but left school during Year 12 after being convicted of stealing and burning a car and you preferred smoking cannabis to learning.
48You started drinking alcohol at 14 or 15 and using cannabis at about the same time. At times, you have used alcohol and cannabis heavily, as well as amphetamines. These substances are no longer an issue since the birth of your children.
49You played competitive sport until you were 18 and stopped because you considered it had become too serious and was no longer fun.
50After leaving school, you obtained casual work as a labourer and worked in factories. You never stayed long in a job. It was only after you met your wife and had a child that you decided to obtain serious employment. At 24, you started a bricklaying apprenticeship, which you completed. You have continued to work as a bricklayer and are now self-employed.
51You live in Central Victoria. You have lived there for the last seven years. You worked in metropolitan Melbourne, especially the northern and north-western suburbs and regional Victoria.
52You are married with two children, aged 10 and 13. Your wife has casual, but full-time employment. You met your wife shortly after the end of your relationship with the victim of your offences. Your relationship is strong.
Psychological assessment
53At the Court’s request, on 5 July 2021, you were extensively interviewed by a forensic psychologist, Dr Alana Harridge. Her report, dated 28 July 2021, has been received. Dr Harridge was engaged by Forensic Intervention Services, which is a part of the Department of Justice and Community Safety. Dr Harridge took a very full history from you and was provided with a number of written documents.
54Dr Harridge applied three recognised psychological assessments to gauge your risk of sexual re-offending:
(a) the Static-99 is an actuarial measure of long-term potential risk for sexual recidivism in adult male sexual offenders. It is designed to assist in the prediction of sexual and violent recidivism for sexual offenders. Using this assessment tool, she placed you in the moderate to low risk category relative to other adult male sexual offenders;
(b) the Risk for Sexual Violence Protocol consists of guidelines to assist professionals like Dr Harridge to form opinions about the placement, treatment or management of the individual after a detailed examination of the various categories set out in the Protocol;
(c) the Psychopathy Checklist – Screening Version is a rating scale that allows the reliable identification of traits of psychopathy. Using the checklist, Dr Harridge considered you showed no traits associated with a psychopathic personality disorder.
55Overall, Dr Harridge considered you are a low risk of sexually re-offending.
56Assuming reasonably that you would be subject to a sentence, custodial or non-custodial, Dr Harridge recommended certain case management intervention in association with Forensic Intervention Services:
(a) if raised again, the need to deal with an attitude that permitted or normalised sexual contact with minors;
(b) encouragement and support to develop additional coping strategies and emotional management skills;
(c) the need to check regularly your mental health and assess your suicide and self-harm risk.
Discussion
57Most of the purposes for which sentences may be imposed are relevant in your case.
58There is a need to punish you to the extent and in a manner which is just in all the circumstances. There is a need to deter other persons from committing these or other offences of a similar character. There is a need to manifest denunciation of the conduct you have engaged in.
59As far as I am concerned, you have rehabilitated yourself. You have not offended in 16 years. You have married and formed a family. You are devoted to your wife and your young sons. You are gainfully employed and have been for many years. If it was not for the assessment of Dr Harridge, I would not have seen the need to deter you from committing these or offences of a similar character. However, she raises a small need to do so.
60Again, in light of Dr Harridge’s assessment, there is a small need to protect the community from you. There is also a small need for my sentences to establish conditions that will facilitate and complete your rehabilitation.
61I have already noted the maximum penalties applying to these offences.
62The offences were protracted and serious. Given the age difference, your culpability is significant.
63I have already described the effect of the offences upon the complainant as set out in her Victim Impact Statement.
64I have noted your pleas of guilty and their timing.
65I have noted your remorse and your determination to accept responsibility for your offending.
66I have noted your criminal history and its irrelevance to these charges.
67The essential difference between Charges 1 and 2 is that Charge 1 involved a form of sexual penetration which led to pregnancy. The fact of pregnancy and the subsequent termination is an aggravating factor.
68The prosecution submitted the regime of suspended sentences of imprisonment was available in your case because of the time when they were committed. Suspended sentences take two forms – fully suspended or partially suspended. The prosecution urged the latter. Undoubtedly, you would urge the former.
69I agree with the prosecution that you should serve some time in prison. This is a classic case for a sentence of imprisonment partially suspended. You are a person now of good character who has committed an offence of the first order.
70The criminal law provides a complete prohibition on the offending comprising both charges. The issue of general deterrence is important. There is a need to deter others from committing these or similar offences by the sentences I will impose.
71The criminal law prohibits this kind of behaviour because of its expected effect on the victim. In this case, the effect on this victim is profound.
72This is a very sad case. As I said, the effect of your offending upon the victim is profound while on the other hand, you have led an exemplary life since your offending 16 years ago and serving a sentence of actual imprisonment will cause real damage to you and your family.
Sentence
73On Charge 1, a charge of sexual penetration of a child under 16, I sentence you to two (2) years and six (6) months’ imprisonment.
74On Charge 2, also a charge of sexual penetration of a child under 16, I sentence you to one (1) year and nine (9) months’ imprisonment.
75Since the different acts of sexual penetration in both charges occurred over the same period between 1 August and 30 November 2005, I will order that the sentence on Charge 2 be served concurrently with the sentence on Charge 1. The total effective sentence is two (2) years and six (6) months’ imprisonment.
76I will direct that you served six (6) months’ imprisonment immediately and after which the balance of the sentence will be suspended for a period of two (2) years and six (6) months. This period of suspension is called “the operational period of the sentence”.
77The law requires me to tell you something about this suspended sentence of imprisonment. First, the purpose of the sentences is to reflect the matters I have already spoken about. Second, after your release from custody and during the operational period of the sentence, you must not commit an offence punishable by imprisonment, whether in this State or outside this State. If you commit such an offence during the operational period, then you may be charged with the offence of breaching the Order and may have your suspended sentence of imprisonment restored so that you will serve the remaining period of the sentence in prison.
Section 6AAA Sentencing Act 1991
78But for your pleas of guilty, I would have sentenced you to three years and six months’ imprisonment with a non-parole period of one year and nine months’ imprisonment.
79HIS HONOUR: Are there any other matters that either you, Mr Batten, or you, Mr Elliott, wish me to address?
80MR BATTEN: The only other matter, Your Honour, is the Sex Offenders Registration Act.
81HIS HONOUR: And that is for?
82MR BATTEN: It’s for a period of reporting for life, Your Honour.
83HIS HONOUR: What class, Mr Batten, are these offences?
84MR BATTEN: They’re Class 1 offences, Your Honour, and there’s also a particular provision in relation to course of conduct offences. But they’re two Class 1 offences, sexual penetration of a child under 16.
85HIS HONOUR: Being Class 1 offences do I need to make an order or does it not occur ‑ ‑ ‑
86MR BATTEN: It’s not a case of making an order, it automatically applies, Your Honour. But it’s a case of informing Mr Elliott and as I understand it, ordinarily providing him with written notices relating to it which inform him of the reporting period of life and may also in the written notices, give him details of his obligations. Which include an array of matters, including of course reporting within I think of seven days of his ‑ ‑ ‑
87HIS HONOUR: Release.
88MR BATTEN: ‑ ‑ ‑ release from custody.
89HIS HONOUR: So he is automatically a registrable offender?
90MR BATTEN: That’s right.
91HIS HONOUR: And must report for the rest of his life?
92MR BATTEN: Yes.
93HIS HONOUR: Mr Elliott, Mr Batten, who appears for the Director of Public Prosecutions, in response to my raising whether either you or he wanted me to address anything else, raised with me the question of the Sex Offenders Registration Act 2004 and he submits to me, and correctly, given the nature of your offending – notwithstanding when it occurred – that you are automatically a registrable offender under that particular piece of legislation. And more particularly, because of the nature of the offences, you will need to report for the rest of your life.
94So what will happen in due course is that my associate, the lady there, will print off certain documents which she will give to you, and Mr Batten reminded me that when you are released after serving six months’ imprisonment there is an obligation for you to attend the police, presumably nearest to where you are living, in order to report for the first time. And they presumably will take certain details from you. And the obligations you have under that reporting regime are set out in considerable detail in the documents that my associate will give to you in due course. You understand that?
95OFFENDER: Yep.
96HIS HONOUR: Did you understand the explanation I gave in relation to this partially suspended sentence?
97OFFENDER: Yes, Your Honour.
98HIS HONOUR: What you have got to remember is that the partially suspended or the suspended sentence can be activated, so to speak, or the suspension revoked in effect by you committing an offence punishable by imprisonment. It does not mean that you have to be punished with imprisonment by the offence but it has to be punishable by imprisonment. And unfortunately in this state, as in the other parts of the Commonwealth, there are very many offences that are punishable by imprisonment. For instance, stealing is punishable by imprisonment. So you have to be very careful in your behaviour for the rest of the operational period of the order. Do you understand that?
99OFFENDER: I do, Your Honour.
100HIS HONOUR: All right. All right, thank you, Mr Batten. Unless there is anything else from either you or Mr Elliott I will have my tipstaff adjourn the Court for the time being. Thank you for your assistance, Mr Batten.
101(Short adjournment.)
102MR BATTEN: Apologies, Your Honour, there’s a matter I should have raised earlier. Before I do that I’ll just confirm that I understand Mr Elliott’s been given the required notice under the Sex Offenders Registration Act. After Your Honour left the Bench I checked those requirements, in terms of the Sex Offenders Registrations Act. I think I made reference to the course of conduct charge being significant. That in fact has no significance in relation to the Sex Offenders Registration Act. But just for the purposes of the record, Your Honour, the basis on which the prosecution has said the registration period or the reporting period is life is the fact of two Class 1 offences.
103That reminded me, Your Honour, that we’d indicated in the Prosecution Opening that Part 2A of the Sentencing Act may apply in terms of sentencing. And the significance of it is at least this, Your Honour, that if it does apply as a requirement, to make a note in the records of the Court of its application. Those provisions of course, Your Honour, Part 2A, provide for certain principles of sentencing in relation to serious offenders, including serious sexual offenders. And it was in relation to serious sexual offenders that I had in mind a special application of the rule regarding the course of conduct charges. And the definition of “serious sexual offender” in s6B(2) of the Act provides that a serious sexual offender includes, under paragraph (ac), an offender who has been convicted of the incidents of a sexual offence included in a course of conduct charge and on that basis, Your Honour, received a term of imprisonment. And on that basis, Your Honour, Mr Elliott having been sentenced to a term of imprisonment in respect of Charge 1, he then falls to be sentenced in respect of Charge 2 as a “serious sexual offender”.
104Now I’m not raising any matter affecting the substance of Your Honour’s sentence. But for the record, Your Honour, it is my submission that Mr Elliott has been sentenced as a serious sexual offender in respect of Charge 2 and at least one implication of that, as I indicated, is a requirement to make that in the records of the Court.
105HIS HONOUR: The other requirement is that there is a direction, s6E, as to cumulation, unless I direct otherwise.
106MR BATTEN: There is, Your Honour. That direction - that provision of course the cases recognise that the Court has nonetheless a discretion and has to take into account totality. But that does apply and ‑ ‑ ‑
107HIS HONOUR: Well, am I right in supposing you do not urge me to take the step of cumulation?
108MR BATTEN: I’m not urging you to alter Your Honour’s sentence.
109HIS HONOUR: Right.
110MR BATTEN: Your Honour’s made a direction for concurrency and I’m not asking Your Honour to revisit that. The other aspect of course is, of these provisions, is that it, in certain circumstances, a disproportionate sentence can be applied. Can be ordered under s6D and the prosecution has not suggested that there’s any occasion for that.
111HIS HONOUR: So the direction that you submit I should make is that in relation to Charge 2, I should cause to be entered into the records of the Court that in respect of that offence, Mr Elliott is sentenced as a serious offender or in this case, serious sex offender?
112MR BATTEN: Yes.
113HIS HONOUR: Mr Elliott, I am not sure how much you have heard of what
Mr Batten had to say to me.114OFFENDER: I heard it but I didn’t understand it, Your Honour.
115HIS HONOUR: Owing to the way the legislation is structured in this area, the fact that I sentenced you to imprisonment on the first charge means that you become what is called a serious sex offender or at least a serious offender for the purposes of sentencing on the second charge. There is a particular regime of sentencing when someone is a serious sex offender and it includes an ability of a court to impose what is called a disproportionate sentence. That is a sentence that is out of kilter with a sentence that would normally be imposed on a particular offence. It would obviously be imposed where the person involved was considered to be a very significant risk of relevantly reoffending if he or she was in the community.
116And the other thing that it provides, or the second thing it provides, is the sentence on the second charge should be served cumulatively upon the sentence of the first charge unless the Court directs otherwise.
117Mr Batten, in respect of those two matters, does not submit a disproportionate sentence is warranted. I entirely agree with him. And he does not submit that there should be any cumulation of the sentence on Charge 2 with Charge 1. And again, I agree with him. So the net effect of all of that is that the sentence that I imposed before will remain unaltered.
118The third thing he drew my attention to is a provision in the same regime that requires me to - cause to be entered, that is have one of the Court staff enter in the Court records the fact that in relation to Charge 2, you are sentenced as a serious sex offender. Which I will ask my staff, particularly my associate, to cause that to be entered in the Court records.
119You understand all that?
120OFFENDER: Ah yeah, sort of.
121HIS HONOUR: If you had a lawyer he or she would explain it to you in some detail. I mean would you be prepared, Mr Batten, to speak to Mr Elliott and answer any questions he might have? Would you be prepared to do that?
122MR BATTEN: If he wished to speak to me, Your Honour, I’d be happy to.
123HIS HONOUR: Mr Elliott, as you would appreciate Mr Batten is a lawyer of considerable experience in this area and more generally. He is prepared to speak to you and answer any questions you might have about what has happened and what has happened most recently in particular. Do you want an opportunity to speak to him?
124OFFENDER: Nah, I’m right, thanks, Your Honour.
125HIS HONOUR: All right. I am reluctant to ask this, Mr Batten, is there anything else?
126MR BATTEN: I’m sorry for not having picked that up earlier. No, there’s nothing else.
127HIS HONOUR: Is there anything else, Mr Elliott?
128OFFENDER: No, Your Honour.
129HIS HONOUR: So my associate has had you sign a receipt for the documents that she gave you and one of the pages sets out your obligations under the sex offender registration legislation. So I would have a look at that, I would read it to yourself carefully. Many people don’t but it is in your interest to do so.
130All right, I will have my tipstaff adjourn the Court temporarily again.
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