Director of Public Prosecutions v Floyd[1]
[2016] VCC 1033
•20 July 2016 (at Melbourne)
| IN THE COUNTY COURT OF VICTORIA AT SALE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUKE FLOYD (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Sale and Melbourne | |
DATE OF HEARING: | 30 March (at Sale) 2016, 8 July 2016 (at Melbourne) | |
DATE OF SENTENCE: | 20 July 2016 (at Melbourne) | |
CASE MAY BE CITED AS: | DPP v Floyd[1] | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1033 | |
[1] Luke Floyd is a pseudonym
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Grooming for sexual conduct, a child under the age of 16 (one charge) – sexual penetration of a child under the age of 16 (four charges) – indecent act with a child under the age of 16 (one charge) – possession of child pornography (one charge) – possession of drug of dependence (two charges) – summary charges: possession of a prohibited weapon – possession of an imitation firearm without a licence
Legislation Cited: Crimes Act 1958, s45(1), s47(1), s49B, s71(1); Drugs, Poisons and Controlled Substances Act 1981, s73(1); Control of Weapons Act 1990, s5AA and s5AB, Sentencing Act 1991, s5(4), s5(4C), s40, s48C, s48CA, s48D, s48E; Criminal Procedure Act 2009; Sex Offenders Registration Act 2004; Confiscation Act 1997 (Vic)
Cases Cited:Boulton & Ors v R [2014] VSCA 342; R v Mills [1998] 4 VR 235; Azzopardi v R 35 VR 43; Phillips v The Queen [2012] VSCA 140; Director of Public Prosecutions v SJK & GAS [2012] VSCA 131; R v Lam [2005] VSC 495
Sentence: Convicted and sentenced to a Community Correction Order for a period of two years. Sex Offender registration for life.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Triandos | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr R Thyssen | Victoria Legal Aid (Dandenong) |
HIS HONOUR:
1 Luke Floyd, you have pleaded guilty to the following offences on the Indictment:
Charge 1
– that you, at a town in Victoria, between 1 July 2014 and
3 February 2015, communicated with Sophie Landale[2], a child under the age of sixteen, with the intention of facilitating Sophie Landale’s engagement or involvement in a sexual offence.
[2] Sophie Landale is a pseudonym
The offence of grooming for sexual conduct, a child under the age of sixteen, is contrary to s.49B of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment.
Charge 2
– that you, at a town in Victoria, between 1 August 2014 and
1 March 2015, took part in an act of sexual penetration with Sophie Landale, a child under the age of sixteen, in that you introduced your penis into the mouth of Sophie Landale (Charge 2 is a representative charge).
The offence of sexual penetration of a child under the age of sixteen is contrary to s.45(1) of the Crimes Act 1958 and carries a maximum penalty of twenty-five years’ imprisonment.
Charge 3
– that you, at a town in Victoria, between 1 August 2014 and
1 March 2015, wilfully committed an indecent act with, or in the presence of,
Sophie Landale, a child under the age of sixteen, to whom you were not married (Charge 3 is a representative charge).
The offence of indecent act of a child under sixteen is contrary to s.47(1) of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment.
Charge 4
– that you, at a town in Victoria, between 1 August 2014 and
1 March 2015, took part in an act of sexual penetration with Sophie Landale, a child under the age of sixteen, in that you introduced your fingers into the vagina of Sophie Landale (Charge 4 is a representative charge).
The offence of sexual penetration of a child under the age of sixteen is contrary to s.45(1) of the Crimes Act 1958 and carries a maximum penalty of twenty-five years’ imprisonment.
Charge 5
– that you, at a town in Victoria, between 1 September 2014 and
1 March 2015, took part in an act of sexual penetration with Sophie Landale, a child under the age of sixteen, in that you introduced your tongue into the vagina of Sophie Landale (Charge 5 is a representative charge).
The offence of sexual penetration of a child under the age of sixteen is contrary to s.45(1) of the Crimes Act 1958 and carries a maximum penalty of twenty-five years’ imprisonment.
Charge 6
– that you, at a town in Victoria, between 1 September 2014 and
1 March 2015, took part in an act of sexual penetration with Sophie Landale, a child under the age of sixteen, in that you introduced your penis into the mouth of Sophie Landale (Charge 6 is a representative charge).
The offence of sexual penetration of a child under the age of sixteen is contrary to s.45(1) of the Crimes Act 1958 and carries a maximum penalty of twenty-five years’ imprisonment.
Charge 7 – that you, at a town in Victoria, on 17 March 2015, knowingly possessed child pornography.
The offence of possession of child pornography is contrary to s.71 of the
Crimes Act1958 and carries a maximum penalty of five year’s imprisonment.
Charge 8 – that you, at a town in Victoria, on 20 March 2015, without being authorised by or licensed under the Drugs, Poisons and Controlled Substances Act 1981, or the regulations to do so, had in your possession a drug of dependence, namely methylamphetamine.
The offence of possession of a drug of dependence is contrary to s.73(1) of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of thirty penalty units or one year imprisonment, or both.
Charge 9 – that you, at a town in Victoria on 20 March 2015, without being authorised by or licensed under the Drugs, Poisons and Controlled Substances Act 1981, or the regulations to do so, had in your possession a drug of dependence, namely Cannabis L.
The offence of possession of a drug of dependence is contrary to s.73(1) of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of five penalty units.
2 At your arraignment on 30 March 2016, you consented, pursuant to s.145 of the Criminal Procedure Act 2009, that the following summary offences be transferred from the Magistrates’ Court to the County Court. You also pleaded guilty to such offences:
Charge 26 – that you, at a town in Victoria on 20 March 2015, did possess a prohibited weapon without an exemption under s.8B, or an approval under s.8C, of the Control of Weapons Act 1990, namely a slingshot.
Such offence is contrary to s.5AA of the Control of Weapons Act 1990 and carries a maximum penalty of 240 penalty units or imprisonment for two years.
Charge 27 – that you, at a town in Victoria on 20 March 2015, being a non-prohibited person, did possess a prohibited weapon without exemption under s.8B, or an approval under s.8C, of the Control of Weapons Act 1990, namely, an imitation firearm.
Such offence is contrary to s.5AB of the Control of Weapons Act 1990 and carries a maximum penalty of 1,200 penalty units or imprisonment for ten years.
The circumstances of the offending
3 The prosecution has prepared a written summary of the circumstances surrounding the offending. At Sale, on 30 March 2016, such summary was marked as an exhibit (Exhibit “1”) and has been accepted by you and your counsel as an appropriate representation of the offending. The important matters of such summary are:
(a)You were born on 17 September 1995 and presently are 20 years of age. You were aged 18 years at the time of the offending commencing and 19 years of age at the time that the offences were reported. Over the period of offending, you were living in a unit at the back of a house occupied by your mother. Your sister, also resided at that address;
(b)The complainant is Sophie Landale, who was born on
28 February 2001 and presently is 15 years of age. She was aged 13 years of age at the time of the offending commencing, and 14 years of age at the time she made her formal complaint. During the period of time over which the offending occurred, the complainant was living with her mother;
(c)You and the complainant lived approximately four houses apart from each other;
(d)The complainant’s mother has four children, three of whom have different fathers;
(e)You had a brief intimate relationship with the older half-sister of the complainant when she was about 16 years old and you came to know the complainant at that time. You would have had a full understanding of the family and, in particular, the age of the complainant, through your relationship with the sister;
(f)In or about July 2014, you added the complainant as a Facebook friend and, thereafter, started “talking”. At that time, the complainant was in Year 8 at Secondary School and you were unemployed and in receipt of a pension;
(g)After becoming “friends” on Facebook, you and the complainant started “snap chatting” and exchanged phone numbers, and then began texting each other. Initially, the communications were of a general nature, but after a few months became sexual;
(h)After a few months of general chats, you sexualised the communication by sending a picture of your erect penis and telling the complainant that she made you “horny”. The complainant would respond in a sexualised manner and over time, sent you a photograph of her breast area and, later, of her vaginal and anal areas. The complainant also sent videos of her masturbating. These activities were occurring every night or every second night. The pictures or videos of the complainant did not include her face as a safety precaution, but you knew it was the complainant as you had “seen everything before” and the complainant knew it was you, as she had seen everything before. Over this period, you and the complainant had weekly discussions about what you were going to do to each other sexually. In this respect, the prosecution referred to various text excerpts running from 22 November 2014 to 3 February 2015;
(i)On an occasion between 1 August 2014 and 31 August 2014, the complainant met you in a park nearby to your home sometime after midnight. You and the complainant went to your unit where the complainant gave you a “blow job” and masturbated your penis with her hand. After this, you kissed her body and fingered her vagina, after which you cuddled and watched television. This was the first time you physically sexually abused the complainant;
(j)On an occasion between 1 September 2014 and 13 March 2015, you arranged for the complainant to meet you at night at your premises. When the complainant arrived, you both took off your clothes and you put your penis into her mouth and she used her hand to masturbate you with your penis in her mouth;
(k)You also put your fingers in her vagina and after placing a condom on your penis, you partially penetrated the complainant, but stopped after her complaining that it hurt. You then took off the condom and lay down on the bed, placing your penis back into the complainant’s mouth, after which you both watched television for a while;
(l)On an occasion between 1 September 2014 and 13 March 2015, you had arranged for the complainant to meet you at your bungalow. When there, you both got undressed and you placed your penis into the complainant’s mouth, during which time she used her hand to masturbate you. On this occasion, you also “licked” the vagina of the complainant. Also, that night, you put a condom on and was able to penetrate the complainant’s vagina with your penis, although removed your penis before you ejaculated;
(m)During February 2015, the complainant’s mother lent her phone to the complainant and when it was returned on 3 February 2015, she observed a pop-up message which was of a sexual nature, causing her to go to the complainant’s message log, where she found other “dirty messages”;
(n)The sister of the complainant told her mother, that such messages were from you, after which she sent a text to you asking you “exactly how far … [you] had gone with Sophie”, to which you replied that you had only “hugged a couple of times at the park”;
(o)The complainant apparently assured her mother, that nothing had happened. However she reported the circumstances to the Sale police;
(p)You and the complainant, at that time, agreed to delete your conversations. On 6 February 2015, investigators met with the mother of the complainant and photographed the messages that she had located on the phone;
(q)On an occasion between 1 March 2015 and 13 March 2015, you arranged for the complainant to come to your bungalow late at night, where you both kissed and undressed. At that time, you placed your penis into the complainant’s mouth and she used her hand to masturbate you, alternating between sucking and masturbating your penis until you ejaculated;
(r)Following this, you inserted your fingers and tongue into her vagina, but the complainant indicated she wanted to have a break, so such activity ceased. Approximately five minutes later, you inserted your penis into the complainant’s vagina, without using a condom and proceeded to have intercourse, but withdrawing before you ejaculated;
(s)A short time later, the complainant woke you and suggested that you perform oral sex in the “69” position and you placed your tongue into the vagina of the complainant and she placed your penis into her mouth.
4 On 17 March 2015, the complainant’s mother attended the Sale Police Station and was shown images contained on your iPhone and she confirmed that the female in the pictures was the complainant. Your phone contained sexually explicit images of the complainant which had been taken by her and sent to you, and included images of the complainant using her fingers to spread the lips of her vagina open, and her anus.
5 Digital analysis of the mobile telephones belonging to you and the complainant, together with a laptop, and external hard drive belonging to you, revealed ten images of the complainant where there is no sexual activity and six images, where there are solo acts by the complainant.
6 On 18 March 2015, the complainant conducted a VARE statement disclosing the details of the offending against her. During that statement, she disclosed that you had sexual relations with her on at least four separate occasions. Furthermore, during her VARE, the complainant informed police that throughout the period of offending, you would try and break it off with her, but she would threaten to self-harm, knowing that you would capitulate, as you hate self-harm. However, the text messages revealed that rather than you attempting to break it off with the complainant, you used the threat of breaking it off as a means of manipulating her to continue supplying you with pictures, videos and, ultimately, sexual favours.
7 During the period of offending, you and the complainant had discussions about your relationship being illegal due to your ages and once the relationship was discovered, you both agreed to delete messages and you, in particular, removed the complainant as a Facebook friend.
8 On 20 March 2015, a search warrant was executed at your premises and during that search, a white Apple iPhone, a laptop computer, a portable hard disk drive, bedding, a slingshot, an imitation firearm, 21 grams of cannabis (and 6.7 grams of cannabis seeds), 6.5 grams of methylamphetamine, portable scales and other items such as an “ice pipe” were seized. As a result of this attendance and the execution of the search warrant, you were arrested and transported to the Sale Police Station and underwent a Record of Interview on that day.
9 During that Record of Interview, you stated, amongst other things:
(i)The complainant had told you that she was 16 years of age and you believed her to be of that age;
(ii)That you had received sexually explicit photographs from the complainant, but did not know if they were the complainant and had not received them after you had sex with the complainant;
(iii)That you had sexual intercourse with the complainant on one occasion and had stopped, when she told you that it hurt and you could not remember any oral sex that had happened about two months ago;
(iv)That you had oral sex with the complainant on the last occasion, but that was all that happened that day and it happened because she would not leave you alone;
(v)That the oral sex happened after the mother of the complainant had found out about the relationship and had asked you not to contact her daughter;
(vi)That the cannabis located did belong to you; you made no comment in relation to the possession of methylamphetamine. You accepted that the gun was the Ned Kelly replica and a mate had brought it from Queensland three to four months ago and that you were the owner of a slingshot that a mate had bought at Aussie Disposals.
10 After your Record of Interview, you were released on bail.
11 Counsel for the prosecution, accepted that there was an early plea of guilty to the offences. Counsel for the prosecution submitted that if convicted of two or more sexual offences, and imprisoned, you would have to be sentenced as a Serious Sex Offender pursuant to the provisions contained in the Sentencing Act 1991. The prosecution did inform the court that in such circumstances, there would be no application for a disproportionate sentence, pursuant to the relevant legislation.
12 Counsel for the prosecution also submitted that on you being convicted of the various offences, you would have to be registered pursuant to the Sex Offenders Registration Act 2004 and that period of registration would be for life.
Victim Impact Statement
13 The prosecution tendered and read the following victim impact statements:
(a) The statement of the complainant declared on 17 March 2016; and
(b)The statement of the mother of the complainant declared on 17 March 2016.
14 The complainant described how she was initially angry and frustrated when her mother told the police about her activities with you. She also stated that she was worried about the effect this was having on her mother and was thinking that this was “all my fault”.
15 She notes that they have had to move house, which has “frustrated” her, because such move has upset her because she has lost contact with friends and, in particular, such move has ruined good friendships completely.
16 The complainant describes that, at school, there are times when she feels “distracted by my thoughts” and does not concentrate properly, thinking that if she could go back in time she would change things. She describes that she was seeing the school’s counsellor for a time, experiencing both anxiety and depression. She describes that although she has had depression in the past, the subject events have sparked it up even more and it is has got “bigger”, causing it to stop her from doing things that involve being around people. She feels that her mother does not trust her and since these events she has shut a lot of people out and her friendship circle has grown very small.
17 In her statement, the mother of the complainant, describes how she felt “sick to the stomach” when she found out the extent of what was happening between you and her daughter.
18 She describes that at the time she had a new-born baby and a toddler at home, and many nights she could not sleep and ended up nearly having a “breakdown”.
19 She also describes deciding to move house to a different town, to be away from the situation which, in turn, cost her money, which she could not really afford.
20 She continues to have sleepless nights and has trust issues with the complainant when she leaves the house, always thinking the worst. She has issues about trusting anyone, including friends of the complainant, and is also concerned when the complainant uses her phone or iPad, as to what she is doing. Ultimately, she describes that she has “lost my daughter in a way”.
Your personal circumstances
21 Your counsel relied on the following documents:
(a)A document headed “Defence Submissions on Plea” (Exhibit “A”);
(b)A report from the psychologist, Mr J Parker, who interviewed you on
13 October 2015 (Exhibit “B”).
22 When the plea hearing commenced in Sale on 30 March 2016, your counsel submitted that it would be appropriate to obtain a Psychiatric Court Report from Forensicare. On that day, the court directed that such a report be obtained and, ultimately, a report dated 6 July 2016 co-authored by Dr James Belschaw (psychiatry registrar) and Dr Nicholas Owens (consultant forensic psychiatrist) was made available to all parties (Exhibit “C”).
23 Partly based on that material and further submissions made by your counsel, I note the following:
24 You were born in Sale and, as I have already recorded, are presently 20 years of age. You have one younger sister, aged 17, who lives with you and your mother. You also have an older brother, aged 24 years, who now lives with his partner and their children;
25 You identify yourself as aboriginal and were raised by your mother and your father until the age of 10 years, when your parents separated and that, although you tried to keep in contact with your father, consider that you were rejected by him. Prior to the separation, you report that the family environment was traumatic, with your father physically abusing you, your mother and siblings;
26 On your ninth birthday, you suffered an injury to your right eye (due to the impact of debris from a lawnmower) and subsequently suffered blindness and paralysis in the right eye, together with a prolonged absence from school;
27 You did attend a local Primary School, but had to repeat the first year due to learning difficulties, namely deficits with reading and writing. After the occurrence of your right eye injury, you had some disciplinary problems at school and your behaviour escalated to involve fighting. You consider the reasons for this were that you were self-conscious of people looking at your eye and you were bullied because of the perceived disfigurement. You were suspended multiple times at primary school due to your behaviour, and was expelled two weeks prior to transferring to secondary school;
28 You initially attended a Secondary School, but was expelled at the start of Year 8 for your behaviour, after which you attended two further schools which provided alternative education – an indigenous education school and a further secondary school. You were expelled from both of these schools after only short periods and, consequently, your education came to an end after the completion of Year 8, at the age of 15 years;
29 Since that time, you have largely stayed at the family home, typically in your room playing computer games or watching television, and socialising with friends at their houses. You briefly attempted to undertake more work or formal training in the automotive field, but this was unsuccessful. You have supported yourself, primarily, from the Disability Support Pension, which was granted both for your learning disability and eye injury. You have continued to live with your mother and sister.
30 You report that you had one significant relationship from the age of 14 to 18 years with a girl of a similar age and that such relationship was sexually intimate. That relationship came to an end because she was dissatisfied with your increasing cannabis use. You reported a further relationship with the older sister of the complainant, when you were approximately 18 years of age and she was 16 years of age. Such relationship lasted for approximately six months and had also been sexually intimate.
31 The only other significant relationship was with the complainant, who you had known due to your relationship with her older half-sibling. You reported that it was an enduring relationship that involved sexual intimacy, although such relationship was tumultuous, as you repeatedly tried to end contact with her, but she had threatened to harm herself if you did so. Such relationship commenced when you were about 18 years of age and you reported that you did not have any knowledge of her age during the relationship.
32 You report that you first used alcohol at the age of 13 years with your father, but denied any alcohol dependency. However, you do note that your drinking in the preceding 18 months has increased, due to the stress from the alleged charges and the court proceedings. You presently consume one to three cans of mixed-spirit drinks daily.
33 You first used cannabis at the age of 14 years and said you smoked one to three grams daily for the preceding three years. You described how it helps calm you down and, although appreciated it can cause psychosis, have seen no such evidence of that amongst friends who use the drug. Further, you also stated that when you do not use cannabis, you suffer withdrawal symptoms, such as nausea.
34 You first used amphetamines in the form of crystal amphetamine at the age of 17 years and used such drug regularly for the first six months of 2015, when you were consuming .5 gram to one gram per day. You reported to the psychiatrist at Forensicare, that you have continued to use methylamphetamine sporadically and last used it two weeks prior to such interview – largely for recreation in the company of friends.
35 You denied any other use of intravenous drug use and, further, also denied that you have never been offered or completed any drug or alcohol rehabilitation or counselling, although you would be keen to undertake such programs in the future.
36 You attended a psychologist from the age of nine, being referred by your school due to your behaviour. You continued engaging with the psychologist until the age of 16, when you ceased attending, as you were obtaining no real assistance.
37 You also were assessed by a paediatric team at the age of 12, at the request of your psychologist, and was subsequently prescribed multiple medications, including treatment for Attention Deficit Hyperactivity Disorder. That is, ADHD and various antidepressants. Such medication was taken until the age of 16, when you self-ceased, because “they work too much, you didn’t feel anything, people could just walk all over you and there was nothing you could do about it”.
The circumstances surrounding the offending
38 When interviewed by the psychiatrists at Forensicare, you gave some details of the offending.
39 When talking about the alleged offending, you stated you met the complainant through your relationship with her half-sibling and you were close to the complainant because she spoke to you about her depression and you tried to help her out. In particular, you described that she wanted a sexual relationship and kept threatening to harm or kill herself, if you ceased to have contact with her. In particular, I refer to the Forensicare report, wherein it is recorded, in part:
“He went onto say that he began to feel responsible for her as she was not being cared for properly: ‘even the text messages she sent me, she wasn’t at home, she was out drinking in the park, her mum didn’t know where she was, she even sent me a message about another bloke that forcibly had sex with her, I told the police officers but they said there’d been no formal complaint, it was never forcible with me’. He went on to say ‘her mum has five kids by five different fathers that says it all doesn’t it?’
He said that he engaged in a sexual relationship with Ms Landale: ‘she asked me to sleep with her, I did not want to sleep with her. I thought she was 16, we never asked each other our ages; her maturity, she seemed [16 years of age]. Even the detectives said she looked older than she is.”
40 Regarding the charge related to possession of child pornography, you said that “I don’t understand that charge because she sent those pictures to me, I didn’t ask for them”, indicating that you were not at fault in being in possession of these materials.
41 Generally, in respect of the charges relating to the complainant, you said that, “I did wrong, I admit that”, reporting that if you were in a similar position again, “I would ask her age, if I would’ve found out her age, I would’ve stopped talking to her then deleted her number, deleted her off the Facebook.” You said that you were remorseful as “it’s fucked up my life”. Asked how the alleged offences might have impacted on the complainant, you said “I don’t know how it would’ve affected her. She said she felt bad as she did not want any of this [charges and court proceedings] to happen”.
42 He also spoke about the charge relating to possession of an illicit drug, stating that you needed the cannabis as “it helps me, it makes me feel better” and that you had the methylamphetamine in your possession “for recreation”.
43 You also commented on the summary charges related to possession of weapons. You said that “Firearms are a fascination. I like how they work, and a mate gave me a replica Ned Kelly [a handgun]. I collect a lot of things like that, but it always stayed in the box.” You denied any intention to use the firearm, or other firearms. You denied a history of using the firearm to threaten others. You stated that you understood that you were also charged with possession of a slingshot. You reported it was simply a “bait launcher” for fishing. Again, you denied that you had ever used the slingshot for violent means.
The opinions expressed in the Forensicare report
44 I refer to the Forensicare report dated 6 July 2016, wherein are recorded the findings of a mental-state examination undertaken on 16 June 2016. In part, the writers of such report conclude:
“At the time of my assessment, Mr Floyd reported several symptoms of depression and anxiety, although objectively, I did not find him to be depressed or anxious. His history would certainly predispose him to both conditions and, accepting his account, he would fulfil the criteria to be diagnosed with a mild depressive disorder. However, it is notable that he reported that several of his symptoms only commenced after he had been charged with the aforementioned offences; therefore, they are a reaction to his current circumstances and may improve as his circumstances improve.
The other important factor in considering his diagnosis, is his concomitant substance abuse. Mr Floyd fulfils the criteria for cannabis dependence and ‘harmful’ use of alcohol and amphetamines (although it is likely that he was dependent on amphetamines in 2015). Abuse of all of these substances can cause symptoms of depression and anxiety, so he cannot be diagnosed outright with either until he is reassessed, when he has been abstinent from these substances for a sustained period of time (generally recommended to be approximately six months).
I did not find Mr Floyd to be suffering from any other specific conditions which need to be addressed, such as intellectual disability, post-traumatic stress disorder, schizophrenia or bipolar affective disorder.
It is difficult to determine his motivation in regard to the offences. However, based on my assessment, it is likely that drug and alcohol abuse and social isolation were contributory.
In terms of his future risk of sexual re-offending, it is never possible to be definitive about the future. However, based on my assessment, he represents a low risk of re-offending. He did not appear to demonstrate any high risk symptoms or behaviours such as hypersexuality, paraphilias, antisocial personality disorder, violence or diversity in offending.
A possible negative prognostic factor is his ongoing externalisation of responsibility for the offences and his apparent lack of remorse in terms of victim empathy.”
45 The writers of such report recommend that in the event of a non-custodial disposition, you would benefit from engagement with a psychologist, under the auspices of a Mental Health Care Plan. Furthermore, it was recommended that you be referred to a drug and alcohol rehabilitation program and efforts made to re-establish community links, which would assist you in a return to regular, meaningful activity.
The report of the psychologist, Mr Jeremy Parker
46 Mr Parker interviewed you on 13 October 2015, at the behest of your solicitor. In the history obtained by Mr Parker, he noted that your father was violent, both to your mother, you and your other siblings. In particular, Mr Parker records your history that as a child, any form of discipline took the form of being “belted”.
47 You gave a similar history to Mr Parker in relation to your education and work background, as that given to the psychiatrists at Forensicare. Although I note you informed Mr Parker that you were dyslexic and that you had had some employment in a supermarket, where you stacked shelves in a butcher’s shop (for about six months).
48 You also informed Mr Parker that you did not know the age of the complainant during the relationship. Although you accepted that you met her through her older sister. Furthermore, you informed Mr Parker that you recall having sex with the complainant on two occasions, but found that if you ceased to stop seeing her and contacting her, she claimed that she was going to self-harm. As you cared for her, you recontacted her.
49 Mr Parker applied the Static-99R test to estimate the risk of you re-offending. He describes such test as an empirically derived risk tool, designed to evaluate the risk of sexual recidivism, based on commonly available demographic and criminal history information. As a result of such testing, Mr Jordan considered that you were in the moderate-low risk category for being charged or convicted with another sexual offence.
50 You also informed Mr Parker that you found the death of your grandfather to be a particularly stressful event.
51 Ultimately, Mr Parker opined, in part:
“Mr Floyd detailed a troubled childhood, with witnessing domestic violence between his parents, losing the sight in his right eye, the death of his grandfather, being bullied and teased at school which impacted on his academic skills, and having a close friend suicide. It is not unexpected that in order to escape the negative emotions associated with these,
Mr Floyd turned to drugs and alcohol. Mr Floyd does present with a substance use disorder (cannabis and amphetamines).
I am of the opinion that Mr Floyd does not have any personality disorder, acquired brain injury, or any serious psychological or psychiatric disorder. However, he continues to experience persistent depressive disorder (formerly called dysthymia). …
It is likely that Mr Floyd’s mental health impacted on his capacity to think consequentially, and thus restricted his ability to act in accordance with socially appropriate norms, in terms of interactions with Sophie. His mental health disorder is likely to be long term and he will require further assistance to improve his functioning.
Persistent depressive disorder cannot produce a causal link with
Mr Floyd’s offending, but it is a significant contributing factor.
…
… He will be greatly assisted by extended psychological intervention (to include drug and alcohol treatment) via referral from his general practitioner. It is my view that such psychological treatment is best provided for in the community.”
Submissions made by your counsel in support of your plea in mitigation
52 Your counsel submitted that the following matters should be taken into account in mitigation of your sentence:
(a) You pleaded guilty to the offences at an early time, which had the utilitarian effect of saving the time and cost of a trial;
(b) You have no prior convictions for any offence whatsoever;
(c) Given that you were 18 years of age at the time of the offending, you must be viewed as a Youthful Offender and reference was made to the leading case of R v Mills [1998] 4 VR 235, which highlights that rehabilitation of young offenders, is a paramount sentencing consideration;
(d) That your level of functioning is quite low, coming from an “impoverished and difficult background”.
53 Your counsel ultimately submitted that an appropriate disposition would be a sentence of a community correction order and reference was made to the well-known decision of Boulton & Ors v R [2014] VSCA 342.
54 The court directed that you be assessed by the appropriate correctional officer as to the suitability to be sentenced to a community correction order. Such assessment occurred on 31 March 2016. You were assessed as being suitable for a community correction order. It was recommended that the following further conditions should be added to the core conditions:
§ unpaid community work;
§ assessment and treatment in relation to drug testing and alcohol testing;
§ medical assessment and treatment;
§ mental health assessment and treatment;
§ offending behaviour programs; and
§ supervision.
55 Furthermore, it was recommended that s.48CA of the Sentencing Act 1991 be utilised, which permits that if orders are made under s.48C (unpaid community work) and s.48D (involving treatment and rehabilitation), for the court to permit the deduction of any hours attending for treatment and rehabilitation under s.48D be deducted from the community work hours outstanding under s.48C.
56 Community Corrections Services assessed your general risk of re-offending as being “medium” according to the level of service risk assessment tool.
Further submissions made on behalf of the prosecution
57 Counsel for the prosecution advised the court that the relevant sentencing considerations could be adequately satisfied by the imposition of a community correction order with various conditions.
Conclusion
58 I consider that the offending covered by Charges 1 to 6 is serious offending, as it involves you sexually manipulating a child under the age of sixteen. In the circumstances of this case the offending constituted by those charges occurred when the victim was aged 13 and 14. Although you were only 18 years old at the time of the commencement of the offending, (which continued shortly after your nineteenth birthday), your greater maturity and in particular, your greater sexual maturity, permitted you to manipulate the complainant, permitting you to obtain sexual gratification.
59 I do not accept that you were unaware of the age of the complainant when the offending occurred. In this respect, I note that you were well aware of the family structure of the complainant, as you had earlier had a relationship with the step-sister of the complainant, and indeed, various texts make plain, that you understood the complainant to be 13 years of age. I also take the view that such manipulation of the complainant involved you threatening to end the relationship, which in turn caused the complainant to continue the sending of various photographs and involve her in further sexual activity.
60 It must be borne in mind that the legislature has seen fit that children under the age of sixteen are to be protected from such manipulation. The victim impact statement by the complainant, would suggest that she has required counselling because of your activities and has also suffered a degree of unhappiness, partly as a result of such activities and also of course, having been required to move to another place to avoid undue attention.
61 I do accept that Charge 7, that is to say, the offence of you possessing child pornography, is not at the serious end of that type of offending, given that the child pornography was photographs supplied by the complainant at various times of her breasts, vagina and anus. However, the fact that the photographs were supplied by her to you, again highlights the degree of manipulation and control you most probably had over the complainant, during the time of the offending.
62 Charges 8 and 9 involve you being in possession of, respectively, relatively small amounts of methylamphetamine (Charge 8) and Cannabis L (Charge 9).
63 Furthermore, in relation to the summary Charge 26 – possessing a prohibited weapon namely a slingshot – and summary Charge 27 – possessing a prohibitive weapon namely an imitation firearm, they do not involve any suggestion that you have used such items or indeed was intending to use such items for inappropriate purposes. In this respect, I note that you say you are a collector of imitation firearms – this being a Ned Kelly replica – and that the slingshot was a “bait launcher” for fishing.
64 I do accept that, consistent with the submissions of your counsel, the following matters should be taken into account in mitigation of any sentence:
(a) Your plea of guilty was accepted by the Director of Public Prosecutions to be an early plea. Although the case against you would appear to have been quite strong, a plea of guilty, at the very least, has utilitarian value in saving the time and cost of a trial (see Phillips v R [2012] VSCA 140 at paragraph [36]). In particular, your plea of guilty to the offences obviated the necessity for the complainant to give evidence at a trial, and to have to re-live the circumstances of the offending in a public forum;
(b) It is always a question for the sentencing Judge whether remorse, or willingness to facilitate the course of justice and acceptance of responsibility are to be inferred from a plea of guilty (See Phillips v R (op cit) at paragraph [96]). I do consider that your early plea of guilty is some evidence of remorse.
I refer to the report from Forensicare wherein the authors expressed the opinion, that you have ongoing externalisation of responsibility for the offences and apparent lack of remorse in terms of victim empathy. I tend to the view that you do not have a total insight as to the nature of your offending, and the potential harm that could occur to the complainant, as a result of such offending given her tender years;
(c) You have no criminal record whatsoever;
(d) Given your age at the time of offending, you must be considered a youthful offender.
I refer to Azzopardi v R (2011) 35 VR 43 and in particular, paragraphs [34] – [36] wherein Redlich JA stated:
There are a number of considerations which underlie the general primacy of an offender’s youth as a sentencing consideration. Firstly, young offenders being immature, are therefore ‘more prone to ill-considered or rash decisions’. They ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct. As Vincent JA explained in Director of Public Prosecutions v SJK & GAS:
‘In the case of young people, to some extent, the law incorporates an acknowledgment of aspects of immaturity. By reason of the stage of development that an offender may have reached, he or she may not fully appreciate the seriousness and real consequences of the offending actions. However, it does not follow that this is always the situation, or that, as teenagers, offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity.’
Secondly, courts ‘recognize the potential for young offenders to be redeemed and rehabilitated’. The potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt, because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’. The added emphasis for the purposes of sentencing on realisation of a young offender’s potential to be rehabilitated, is further justified because of the community’s interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender, protects the community from further offending. As stated in R v Lam:
‘A primary objective of the criminal justice system is to achieve crime prevention to protect the public. The rehabilitation of an offender should not be seen as a consideration inimical to that objective. Crime prevention to protect the public and the rehabilitation of the offender are interlinked objectives. In sentencing, there is thus a broad public interest in taking into account the youth of the offender.’
Thirdly, courts sentencing young offenders are cognizant that the effect of the incarceration, in an adult prison on a young offender, will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation. While in prison, a youthful offender is likely to be exposed to corrupting influences, which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed.Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community. … .”
65 I note that the authors of the Forensicare report considered that you posed a low risk of re-offending. In particular, they came to the view that you did not demonstrate any high risk symptoms or behaviours such as hyposexuality, paraphilias, anti-social personality disorder, violence or diversity in offending.
66 Mr Parker, who applied the Static-99R test to estimate the risk of you re-offending, considered that you were of a moderate-low risk category for being charged or convicted of another sexual offence. Furthermore, when assessed for a community correction order, you were considered to be of “medium” risk of re-offending.
67 I do accept the opinion of the authors of the Forensicare report which opined that although difficult to determine your motivation for the offences (pertaining to the complainant), it is likely that drug and alcohol abuse, together with social isolation, were contributing factors. Overall, I consider that your prospects for rehabilitation are fair to reasonable.
68 I have been urged by your counsel to sentence you to a community correction order.
69 I refer to the guideline judgment given by the Court of Appeal in Boulton (op cit), pertaining to the operation of community correction orders, which have been available in Victorian courts since January 2012. As that Court stated, the community correction order is a radical new sentencing option, with the potential to transform sentencing in this state. Although a non-custodial order, such order has mandatory conditions laid down by the legislature, and the sentencing court can attach to a community correction order a range of conditions which are "variously coercive, prohibitive, intrusive and rehabilitative”. As pointed out by the Court of Appeal, a community correction order is a “flexible sentencing option”, enabling punitive and rehabilitative purposes to be served simultaneously.
70 I refer to s.5(4) and s.5(4C) of the Sentencing Act 1991, which respectively state:
“(4)A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.
…
(4C)A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached.”
71 As the Court of Appeal has stated, s.4(4C) of the Sentencing Act 1991, prohibits the imposition of a sentence of imprisonment, unless the sentencing court has paid specific and careful attention to:
(a) the purposes for which the sentence is to be imposed on the offender; and
(b) where those purposes can be achieved by a community correction order to which one or more of the specified (onerous) conditions is attached.
72 I also refer to Appendix 1 of the Court of Appeal judgment, which is headed “Community Correction Orders, Guidelines for Sentencing Courts”. Pursuant to that document, it is necessary that I first assess the objective nature and gravity of the offences and the moral culpability of the offender. I am then called upon to consider whether:
(a) The crimes, as so assessed, are so serious, that nothing short of a sentence wholly comprised of an immediate term of imprisonment will suffice to satisfy the requirements of just punishment; or
(b) A community correction order, either alone or in conjunction with a sentence of imprisonment, will satisfy the requirements of just punishment.
73 In particular, the Court of Appeal refers to the use of a community correction order and offences involving young offenders (see paragraphs [183] – [190]. A community correction order can be used to rehabilitate and punish simultaneously when rehabilitation of the offender is of paramount importance.
74 In general, I consider that the sentencing objectives of deterrence, both general and specific, denunciation, just punishment and protection of the community are all relevant in determining an appropriate sentence. However, as already noted, a community correction order can be used to rehabilitate and punish an offender simultaneously, and as the Court of Appeal noted, diminishes the conflict between sentencing purposes, particularly acute in relation to young offenders.
75 Taking all of these matters into account, I consider that Charges 1, 2, 3, 4, 5, 6 and 7 are founded on the same facts or form, or are part of a series of offences of the same or of a similar character within the meaning of s.40 of the Sentencing Act 1991. In such circumstances, I intend to convict you of each of those offences, and sentence you to a community corrections order with various conditions.
76 In relation to Charges 8 and 9 and Charges 26 and 27, I intend to convict you and sentence you to a variety of fines.
77 Please be upstanding:
(a) In relation to Charges 1, 2, 3, 4, 5, 6 and 7, you are convicted and sentenced to a community corrections order for a period of two (2) years. You must attend the Sale Community Correctional Services within two (2) clear working days from this date. In addition to the mandatory terms, there will be the following conditions:
(i) Pursuant to s.48C of the Sentencing Act 1991, you are to perform 150 hours of unpaid community work over the duration of the Order;
(ii) Pursuant to s.48D(3)(a) of the Sentencing Act 1991, you are to undergo assessment and treatment (including testing) for drug abuse or dependency;
(iii) Pursuant to s.48D(3)(d) of the Sentencing Act 1991, you are to undergo any medical assessment and treatment that may include general or specialist medical treatment or treatment in a hospital or residential facility;
(iv) Pursuant to s.48D(3)(e) of the Sentencing Act 1991, you are to undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility;
(v) Pursuant to s.48D(3)(f) of the Sentencing Act 1991, you are to undergo any program that addresses factors related to your offending behaviour, and in particular, you are to undergo “Specialised Offender Assessment and Treatment Service (SOATS);
(vi) Pursuant to s.48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by the Secretary to the Department of Justice over the course of the order;
(vii) Pursuant to s.48CA of the Sentencing Act 1991, I direct that all of the hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work, for the purposes of the unpaid community work condition;
(b) You will be registered as a Sex Offender pursuant to the Sex Offenders Registration Act 2004, and such registration will be for life;
(c) In relation to Charge 8, you will be convicted and sentenced to a fine of $400 to be payable to the Registrar of the court;
(d) In relation to Charge 9, you will be convicted and sentenced to a fine of $100 to be paid to the Registrar of the court;
(e) In relation to summary Charge 26, you will be convicted and sentenced to a fine of $120;
(f) In relation to summary Charge 27, you will be convicted and sentenced to a fine of $400;
(g) I further order that the drugs and associated drug paraphernalia, slingshot and the imitation firearm as set out in the schedule be forfeited to the Crown pursuant to the Confiscation Act 1997 (Vic).
78 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that save for your pleas of guilty, I would have sentenced you to a period of twelve months’ imprisonment.
79 MR CLANCY: As Your Honour pleases.
80 HIS HONOUR: Anything to add gentlemen?
81 MR McQUILLAN: No, Your Honour.
82 MR CLANCY: No, Your Honour.
83 HIS HONOUR: Mr Floyd, as it no doubt will be explained by your counsel, you have been sentenced to what is referred to as a community correction order. That is like any sentence this court gives and as you will become aware of and you probably took in some of it, there are various conditions attached to that order which you must comply with for the next two years. If you do not comply with those conditions, you will be brought back before me on the basis that you breached those orders. If that happens, I have got the power to do a variety of things, one of which, I can send you to prison.
84 So it is very important that you comply with the conditions because as I say, if you do not, I will take a very dim view if you do not. You would have to have very good reason why there was non-compliance. So in those circumstances, it is up to you from this point, so please comply with that order because if you do not, you will be back here before you can say Jack Robinson.
85 Now it is necessary that you sign some papers. I will allow you to come down from the dock so that can be done. I will adjourn sine die otherwise.
86 MR McQUILLAN: Yes, Your Honour.
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