Director of Public Prosecutions v Evanson

[2017] VCC 1202

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

CODY EVANSON (a pseudonym)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 August 2017
CASE MAY BE CITED AS:	DPP v EVANSON
MEDIUM NEUTRAL CITATION:	[2017] VCC 1202

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Churchill
For the Accused	Ms R. Sleeth

HER HONOUR:

1Cody Evanson,[1] you have pleaded guilty before me to three charges of incest.  The facts underlying your offending are as follows.

[1] Cody Evanson is a pseudonym.

2The victim in this matter was your then 13 year old half-sister Pollie.[2]  You and she shared the same father.  The complainant lived with her father, mother and two sisters in St Alban's.  You live with your mother in Ararat and would stay with your father and hence Pollie every second weekend.

[2] Pollie is a pseudonym.

3The two of you participated in sexual activity on three separate occasions between 1 August and 14 September 2016.  At the time of the offending you were 19 and the complainant as I have said was 13.

4Apparently over the years you and your half-sister became close.  You shared interest particularly in video games and computers.  The sexual relationship that grew between you began in August 2016, starting with Pollie coming into your room at night time to watch YouTube videos together on your laptop.  She would come in at night time when her parents had gone to sleep.

5The two of you started cuddling during these visits which ultimately progressed to sexual activity.

6On the first occasion you penetrated the complainant by inserting your fingers in her vagina which behaviour underlies Charge 1 on the indictment.

7You then moved on top of her and then placed your penis in her vagina.  The sexual activity did not last long as it was the complainant's first time and she was worried and so you stopped.  That penetration underlies Charge 2 on the indictment of incest.

8On the second occasion of sexual contact between you, you digitally penetrated the complainant and then penetrated her vagina with your penis.

9The occasions of digital penetration overall are contained in representative Charge 1 and the occasions of penile-vaginal penetration underlie the representative Charge 2.

10You and your half-sister had apparently discussed protection and this was exercised by you withdrawing your penis from her vagina prior to ejaculation.

11On one occasion, you inserted your penis into Pollie's mouth which underlies Charge 3 on the indictment.  On that occasion you had oral sex with her for a short period of time only before ejaculation.

12After this activity which was the second incident of sexual contact between you, you performed oral sex on the complainant, using your mouth on her vagina, which is an uncharged act.

13At some point of time during this second occasion of sexual activity, the two of you watched some adult pornographic material on your laptop.  Again this is a criminal activity which remains an uncharged act.

14On the third occasion of sexual activity, you again inserted your fingers into the complainant's vagina.  You then used saliva to lubricate your penis before inserting it into her vagina which behaviour forms part of representative Charges 1 and 2.

15Apparently the complainant on this occasion said that she wanted to stop and did not want to do this anymore.  You agreed to stop and thereafter sexual contact between the two of you ceased.

16On 21 September 2016, the complainant went to a medical clinic with her mother because of pain she had when urinating and during that consultation after her mother had left the room, disclosed she was sexually active with an older male but did not identify you.

17The doctor became concerned and arranged for her to attend the clinic about ten days later and again Pollie's mother left the consulting room.  On that occasion she disclosed that she was sexually active with you.  As a result of mandatory reporting provisions, the doctor then contacted the appropriate authorities which triggered the subsequent involvement of police.  Ultimately it was discovered she had a urinary tract infection.

18You were arrested and interviewed by police on 12 October 2016.  You conducted a fully confessional record of interview, stating that you had had sex with Pollie, describing how she would come into your room to watch YouTube and describing the progression into sexual activity.

19At first you told police that sexual activity or contact had occurred only once but later admitted that it was actually on three occasions.  You admitted touching her breasts, performing oral sex, both in terms of she performing it on you and you performing it upon her.  You admitted to digital and penile penetration that the sex was unprotected in that no condom was used although talked about using the withdrawal method and watching pornography together.

20The matter resolved at the first committal mention on 13 January 2017.  Your half-sister has never been subject to cross-examination.

21The maximum penalty for incest is five years imprisonment.

22The complainant declined to make a victim impact statement in this matter.  Obviously all contact between the two of you and indeed your father has ceased. 

23I now turn to your personal circumstances.  You are 20 years of age.  You have never been involved in any prior criminal offending.

24Up until the time that you were interviewed by police, your life could be fairly said to have been unremarkable, primarily because of its confined nature and your own very confined activities.

25You have a number of half siblings.  You have an older sister Terry[3] who was born to another relationship between your mother and her then partner and she is in foster care in England.  You have another sister Meagan[4] who lives at home who is your half-sister.  You had a brother Michael[5] who was your full brother but who died in 2011 as a result of a drug overdose which was apparently the result of a substance given to him by a young woman who was subsequently charged.  Understandably this had had a depressing effect upon you and your family.

[3] Terry is a pseudonym.

[4] Meagan is a pseudonym.

[5] Michael is a pseudonym.

26Pollie is the child of your biological father and his wife.  You told psychologist Jeffrey Cummins whose reports dated 6 April 2017 and 14 August 2017 were tendered on the plea, that you had never known your biological parents to be together.  Apparently they were together for several years when your mother was in her early 20s but it was an on and off relationship.

27Your mother has been married for the last nine years to your step-father who works at a service station and who is also a Deakin of the Anglican Church and with whom you reported a happy and respectful relationship.

28You had some difficulty at school.  You repeated Grade 5.  Your family now lives in Ararat but at the time of your primary schooling, you were living in the Werribee, Geelong area.  You repeated Grade 5 at school because of learning difficulties and ultimately transferred to the Ararat Community College at the start of Year 7 where you remained until the end of Year 11.

29I note unfortunately you had intended to go on to undertake VCAL at the Year 12 level but funding of the school ceased.  The school closed and you were unable to do this.

30Ararat Community College was essentially as the way you have described it to Mr Cummins, "A school for kids who couldn't cope with normal schooling".  You explained that you had been bullied throughout your schooling beginning in Year 7, even at the alternate community school.

31You have some friends but unsurprisingly for a boy who endured consistent bullying, you do not have a wide circle of friends.  Indeed it could be said you have had a very confined social life for someone of your age.

32The sexual activity between yourself and your half-sister was the first sexual activity you had ever had.  You had reported some vague and short lived relationships with girls but nothing of any substance.  Indeed your mother in her reference to this court and in speaking to Mr Cummins, reported you as a "mummy's boy" who had a more than normal attachment to her and this has undoubtedly played some part in the very limited and might I say somewhat abnormal adolescence that you have experienced.

33You have been unable to find employment since leaving school.  The only interview despite many applications by you for interviews was with a bakery and you were unsuccessful.  This has reportedly caused you some depression over the years.

34You currently reside with your mother and step-father, your sister and a friend Joel[6] who had accommodation difficulties in Ararat.  You do apparently very much enjoy video games and have some computer skills.  Indeed I note your step-father in particular referred to that in his reference to this court, but you have never pursued any sort of career in that area although that remains a possibility for you.

[6] Joel is a pseudonym.

35This is extremely serious offending but at the same time it has some unusual features in my view.  First it would appear that this was a consensual relationship between yourself and your half-sister.  You appear not to have understood the biological constraints surrounding the offence of incest and indeed told Mr Cummins that you believed yourself to be in love with Pollie and saw yourself as having some sort of future with her.

36Unsurprisingly, Mr Cummins described you as a 19 year old who presented more as a youth than as a young man and indeed I make the comment and I do so with the utmost respect, and without in any way wishing to cause any hurt; you do present physically as someone very much younger than your years.

37Mr Cummins was concerned that you presented as socially awkward and it was his view that your relationship with your mother involved an attachment that was not quite normal for someone of your age.

38He described you and again, I do not want to cause you any hurt, as presenting as somewhat of a "nerd", if I can put it that way.  Can I digress for a moment, to say Mr Evanson, there seems to be a number of films around where nerds are the heroes.  So I do not want you to - but for the purposes of my sentencing remarks, it is important that I do make that sort of reference.

39Ultimately, Mr Cummins was concerned about your communication capacity with him and overall his impression was and I am not quoting directly, from
Mr Cummins' report, but the impression I gained from the report was that he regarded as you socially immature, physically immature, having an abnormal attachment to your mother and a fairly major naivety existing in you insofar as your knowledge about what incest entailed and what your relationship with your half-sister actually was.

40It was in the circumstances, (and I am in no way seeking to trivial the seriousness of the offending in social terms, but in a personal sense) not a predatory act by you, but one where you, incredibly, believed you were in love with your 13 year old half-sister who emotionally, it would seem, was much closer in age to you than your numerical ages would suggest.

41It was carried out in a naïve and consensual context.  It ended as a result of the complainant's request and may never have been discovered had she contracted a urinary tract infection and made the complaint that she did to the general practitioner.

42Mr Cummins said he regarded your risk of reoffending as being, "Low-moderate and trending towards low".  Mr Cummins was of the view that at the time of offending and he stated,

"And currently, he was suffering from a social communication disorder, was on the borderline of having an autism spectrum disorder and has unresolved attachment issues".

43He went on to state:

"In my opinion, Mr Evanson already has significant development delays".

44You have apparently self-harmed subsequent on three occasions, subsequent to this offending.  Obviously you present as highly anxious over the prospect of incarceration which clearly in the circumstances you have been appropriately advised by your legal representatives as being very much on the cards.

45It was Mr Cummins' view that were you to be incarcerated, your life could well be at risk.  He stated:

"Under these circumstances it is my opinion it would be appropriate for the court on clinical grounds to consider dealing with Mr Evanson via an alternative punishment, such as a CCO with unpaid community work which may also provide him with skills which are of use in future employment".

46Now it is not particularly normal for experienced psychologists such as
Mr Cummins to make a recommendation in those fairly strong terms as to the appropriate disposition that a court should impose and I regard it as fairly significant that Mr Cummins has done so.

47He further interviewed you and in his report dated 14 August 2017 noted that he conducted a large number of tests upon you, finding that you had an overall IQ of 99 which places you in the average range.

48Of particular significance, he stated that the neuropsychological testing he conducted upon you and its results,

"…were generally consistent with him being diagnosed with an autism spectrum disorder.  I assessed his social communication deficits as being marked as opposed to severe, which indicates he requires assistance in this regard and that without relevant assistance, he is very likely to draw negative attention to himself from both age related peers and from older adults and even from adolescents who are several years younger with him.  In terms of the issue of restrictive interests and activities and repetitive patterns of behaviour, I assessed his level of impairment as being relatively mild".

49He went on to say:

"In a clinical sense therefore, I would assess him as having a mild autism spectrum disorder without an intellectual impairment.  He certainly requires remediation in terms of general knowledge in vocabulary and he requires assistance in terms of thinking in abstract as opposed to concrete terms".

50It was his view that you would find a service of imprisonment more difficult than for someone who did not have this particular disorder.

51Now in my view that finding of autism, albeit mild, has particular significance.  It goes to explaining your naivety, the fairly restricted life that you have lived, the attachment issue with your mother and your inability to understand the relationship between your half-sister and yourself and to form the view that you were in love with her and that you had a future together.  These would otherwise be seen as quite incredible conclusions and not perhaps accepted in court.

52Given the abundance of psychological material, in the form of both the clinical interview that Mr Cummins had with you and the tests that he administered, I do accept that your previously undiagnosed mild autism disorder had some effect in this offending, in that it was carried out in the context that I have described, very much contributed to, in my view by your existing condition.

53Secondly, the existence of this condition enlivens those parts of Verdins which states that a court may have regard to the fact that a particular accused would have a more difficult experience in prison than the normal prisoner.

54In my view, your very youthful presentation, your general slight build, your psychological disorder, would render a service of a term of imprisonment extraordinarily difficult and I sentence you very much with that in mind.

55Further I take into account your lack of prior or subsequent history.  I take into account the fairly unique circumstances surrounding this offending.  You continue to have the support of caring and pro-social parents.

56You now have diagnoses which relate to both your social difficulties and employment difficulties which can be addressed.  I in particular, take into account Mr Cummins' conclusion after extensive testing and interview, that you present a low to moderate tending to low risk of reoffending.  Indeed, in the circumstances, it is my view that but for the conditions existing in you, this court would be unlikely to have ever seen you before it.  I do not expect to see you before a court again.

57You were entirely co-operative with police, in fact providing them with information that led to additional charges being able to be led.  I accept that you are extremely remorseful for your offending.

58It was a prosecution submission that the innate seriousness of this offending should in fact lead to some term of imprisonment or incarceration in a youth justice centre being imposed.  However in my view the mitigatory matters I have referred to do not require that I take this step and indeed, in my view those mitigatory factors are of sufficient strength that I would not be paying sufficient regard to the Sentencing Act s.5, which dictates that gaol should only be imposed as a sentencing of last resort, were I to incarcerate you.

59In my view as I have said, your innate difficulties, the unlikelihood of you reoffending, your relative youth and your psychological condition, are all matters of such significance that I should not and could not regard this to be a case where only a sentence of imprisonment would be appropriate in this case.

60I have had you assessed for a community corrections order and unsurprisingly you have been found suitable.

61Of have some concern, Mr Evanson, is that you presented as regretting your offending behaviour but appeared to minimise your role in it.  You do have to understand that you are in this trouble and before this court, not because of the relationship, the blood relationship with Pollie, but because you are six years older than her.  The law says that a child under the age of 16 years is to be regarded as not responsible for being involved in a sexual relationship with an inappropriately older partner.

62The law therefore says that a girl under 16 years consenting or saying it is all right to have a sexual relationship does not matter.  You as the older person involved in the relationship are meant to be bear the responsibility for that.  Do you understand?  That means that because Pollie was 13, the fact that she consented does not matter.  You as a 19 year old are expected to understand that she was too young to be engaged in a sexual relationship, in particular given her blood relationship to you.

63I make a point of saying that to you, Mr Evanson, because you need to bear that in mind in the future, all right?  It is likely that you are going to find girls who are a quite a bit younger than you, easier to get along with than someone your older age and that is probably going to be the case for some time.  You simply cannot have a sexual relationship with them even if you and they feel that they have fallen in love.  You cannot have a sexual relationship with a girl aged 16 or younger than 16.  Do you understand?  That is extremely important.

64In my view, you do need some education as to appropriate sexual behaviour.  There will be special conditions attached to the community corrections order which I have decided to impose in your case.

65Now before I place you on a community corrections order, Mr Evanson, I have to explain to you what the conditions are, all right?

66So there are what called core conditions that exist in any order.  They are firstly:

67That you must report to the Community Corrections office within two working days of the making of this order.  That is by Friday of this week;

68While you are on the order you must not commit any other offence punishable by imprisonment.  That does not mean you have to be sentenced to gaol.  That just means that while you are on the order, if you commit an offence for which you could be sentenced to gaol theoretically, like if you knock off a box matches from Woolworths, theoretically you could be gaoled for that, that would be a breach;

69You must not leave Victoria without the permission of the Community Corrections office;

70You must report to and receive visits from the Community Corrections office;

71You must advise the Community Corrections office of any change in employment or address;

72You must not attend upon the Community Corrections under the influence of drugs or alcohol and I make the comment here, that a further supportive aspect of your situation is that you do not have any difficulties with substance abuse of any kind;

73Finally, you must obey all lawful directions of the Community Corrections office.

74The order will last for 18 months.  I am going to order that you undertake the sex offender's program.  Now that is going to be difficult.  You are probably not going to enjoy it much but you need to do it, all right?

75Secondly, I am going to order that you undertake 150 hours of unpaid community work.

76I have already ordered that you undertake a sex offender's program which probably comes under this next heading that I am about to underline, which is that you undertake offending behaviour programs as directed.  That is, specialised offender treatment assessment and treatment.  What is stated in the report from Corrections is:

"Given the nature of the offending it is respectfully recommended that Mr Evanson be assessed for participation in specialised offender treatment and assessment and treatment".

77It is called a SOATS program.  You will be assessed for your risk of sexual reoffending which is important because that will determine what sort of program they put you into.

78I note that supervision has been recommended.  This is because the Corrections officer has done the level of service industry risk tool assessment which brought you back at medium risk of reoffending.  I do not agree with that, the extensive testing of Mr Cummins, does not bring you in at that level.  I do not think supervision is required in this case.

79I am also going to order that you be assessed and under treatment for mental health difficulties, all right?  This whole experience has been traumatic.  I also think that you need some assistance with your social communication, how you get on with people.  You need to start leading a bit of a bigger life, Mr Evanson. Hopefully that will assist you as well.

80So those are the conditions that I am going to impose.  Are you prepared to enter this order?

81OFFENDER:  Yes, Your Honour.

82HER HONOUR:  Thank you.  We will just prepare the paperwork.

83MS CHURCHILL:  Can I just interrupt for a second, Your Honour?

84HER HONOUR:  Of course.

85MS CHURCHILL:  Your Honour asked for judicial monitoring.  It has been recommended.  I do not know if Your Honour is still pursuing that?

86HER HONOUR:  Thank you, Ms Churchill.  I forgot about that.  Yes, I will impose judicial monitoring and the first one will be in six months' time.  I just want to see how you are going.  I probably do not need to do it as much as I do in other cases, but I do want to see that you are linked in with appropriate services as much as anything else.

87It is really important that you understand this, Mr Evanson and I say this to all people who are placed on community corrections orders in my court.  Many people come to court very afraid that they are going to go to gaol.  They leave this court very relieved because they are not going to gaol and they are on a CCO.  Then they relax, and the CCO and its conditions start to become a nuisance.

88CCOs are not the most enjoyable things, all right?  You are probably not going to enjoy your unpaid community work.  Many young men do not enjoy going and doing therapy.  You might not like the sex offender's treatment program.  You might not like your community corrections order.  That can happen too.

89But you have got to understand, here is gaol and here is the community corrections order in the middle.  Now the only thing keeping you from gaol is the community corrections order.  You have to undertake all the conditions of the CCO.  If you do not, you will be in breach.

90You can be breached for reoffending and you can be breached for not doing what you are told on the order.  Basically, if Corrections say jump, you say how high.  That is really important.  People relax.  You know, there is a big build up to the court, and then, "Thank god, I did not go to gaol" and off you go and you are on the CCO for a while and then you go, "I don't like this and I don't like the CCO person and it's a nuisance.  I haven't got my licence, Mum has to drive me, do unpaid community work" and so forth and so on.

91Forget all of that.  The community corrections order is the only thing standing between you and gaol and you must undertake and perform all the conditions, do you understand?  So when you come back on the judicial monitoring, there will be a report from Corrections, all right?  So I will know how you are going.  But I will also know how the rehabilitative conditions are going.

92Also, it is an opportunity for you when you come back to say, "Look, I'm finding this difficult or that's difficult" and we can have a chat and iron things out.  But you have got to get this order done.  All right?

93We are going to get a date for the first judicial monitoring.  If it is all going well, I may not need to see you again, but I would just like to see how you start off.

94So the first judicial monitoring will be at 9.30 on 25 January 2018.

95Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of nine months and order that you be released on a community corrections order for a period of two and a half years.

96Is there anything that I have left out?  Placement on the sex offender's register?

97MS CHURCHILL:  The Sex Offenders Registration Act, Your Honour and application was made for a s.464.  I think Your Honour indicated that you were not tendered to make one.

98HER HONOUR:  I do not think it is an appropriate case ‑ ‑ ‑

99MS CHURCHILL:  Perhaps if Your Honour indicates that ‑ ‑ ‑

100HER HONOUR:  No.

101MS CHURCHILL:  Yes, just the Sex OffendersRegistration Act ‑ ‑ ‑

102HER HONOUR:  I do not think it is an appropriate case.  I do not think he presents as someone whose DNA needs to be on police records or that if he had been, would have been any assistance in this case.

103I have got no choice in this.  You are placed on the sex offender's register for life.  I make the comment that this is one of those cases, and please understand, I am not approving of what you did or trying to trivialise it in any way, but in the circumstances, this is yet again another case where the court's inability to decide in all the circumstances whether a person should or should not be placed on the sex offender's registration has led to an incongruent result. This is a prime example of it.  I do not think it is at all necessary that you be subject to life to the conditions that attach to this order, and I note that as a young man it is going to cause you some significance difficulties and could affect your employment.

104I simply make this note because I think it is worth making note of but I am bound to place you on the sex offender's registration list and your counsel will explain to you the obligations that attach to that, all right?  So we will just prepare that as well and get you sign to that, thank you.

105Is there anything that counsel thinks I have missed?

106MS CHURCHILL:  No, Your Honour.

107MS SLEETH:  No, Your Honour.

108HER HONOUR:  Thank you.  In other words, this is a classic case of the unnecessary restrictions relating to who should and should not be placed on the registration and flies in the face of all of the rehabilitative principles that ordinarily surround sentencing a person of your age and antecedence.  Thank you.

109MS SLEETH:  May I approach my client, Your Honour?

110HER HONOUR:  Of course.  As best you can, Ms Sleeth.  Now Cody’s parents, did that make sense to you, amidst all the ‑ ‑ ‑

111MR EVANSON:  Yes.

112HER HONOUR:  All right.  You have at least got some god idea of what has been getting in Cody’s way in terms of - you are obviously aware that he really should be a bit further down the social life, employment track that he is at his age.  Hopefully he will be able to get some assistance for this.  So that is at least something, all right.

113MR EVANSON:  Thank you, Your Honour.

114HER HONOUR:  That is quite all right.  Now Cody, can you stand up please?  Did you understand everything I said?

115OFFENDER:  Yes, Ma'am.

116HER HONOUR:  Are you sure?

117OFFENDER:  Yes.

118HER HONOUR:  Have you got any questions?

119OFFENDER:  No, Your Honour.

120HER HONOUR:  I do not want you to go away thinking terribly about yourself, all right?  I do not expect to ever see you here again and it might be that you have got a bit of a future in the computer industry.  It is always a good idea to try and pick a career that fits with something you really love.  All right?  There is probably a TAFE course you could do.  You have got Year 11 under your belt.  You might even try and do a Year 12 VCAL course online.  All right?  Just something that gives you a bit of structure, gives you a bit of future going, all right?  Because I am sure, you must be getting a bit sick of being home all the time, are you?

121OFFENDER:  Yes.

122HER HONOUR:  Yes, of course you are.  You know, you are a young bloke on the start of your life.  Have a think about what you could do with computers.  It does not have to be - I know that under Centrelink that you have to go and apply for thousands of jobs.  Mr Cummins noted that you had never been asked to do a job skills program.  Why not be a bit proactive and ask to do that.  All right?  Why not have a chat with your Centrelink worker about what you are interested in and what sort of course that you could do.  They may be able to direct you somewhere.

123You do not have to just sit and wait for things to happen to you.  You do need that psychological help as well.  It is not easy if you have experienced your whole teenage life being bullied in the way you have.  You probably just think it is a big scary world out there, but it does not have to be.  All right?  Good luck to you, sir.  I will just stop talking and sign this.

124I thank counsel very much for their assistance and their patience during my sentencing remarks.  Thank you.  I will stand down until 10.30, thank you.

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