Director of Public Prosecutions v Franklin (a Pseudonym)
[2021] VCC 1944
•29 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BLAKE FRANKLIN (A PSEUDONYM)[1] |
[1] To ensure there is no identification of a victim of a sexual offence, these published reasons for sentence have been anonymized by the adoption of pseudonyms in place of the names of the offender, victim and relatives and the removal of all identifying information. A schedule of substitutions will be retained by the Court for future reference.
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JUDGE: | HER HONOUR JUDGE CARLIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 November 2021 and 26 November 2021 | |
DATE OF SENTENCE: | 29 November 2021 | |
CASE MAY BE CITED AS: | DPP v Franklin (A Pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1944 | |
REASONS FOR SENTENCE
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Subject: Criminal
Catchwords: plea of guilty; involve a child in the production of child abuse material; sexual assault of a child under the age of 16; produce child abuse material; diagnosis of Autism Spectrum Disorder in adulthood; offender a permanent resident in Australia; child sexual offending within wider family context.
Legislation Cited: Sentencing Act 1991 (Vic); Migration Act1958 (Cth); Sex Offenders Registration Act 2004 (Vic).
Cases Cited: R v Verdins [2007] VSCA 102; Brown v The Queen [2019] VSCA 216; DPP v Bales [2015] VSCA 261; Mush v The Queen [2019] VSCA 307; Tobin (a pseudonym) v The Queen [2021] VSCA 180; Clarkson v The Queen (2011) 32 VR 361; Adamson v R [2015] VSCA 194; DPP v Toomey [2006] VSCA 90; Worboyes v The Queen [2021] VSCA 169.
Sentence: Convicted and sentenced to a Total Effective Sentence of 42 months imprisonment with a non-parole period of 22 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Sprague | Office of Public Prosecutions |
| For the Accused | Mr N. Rudston | Chester Metcalfe & Co |
HER HONOUR:
Introduction
1.Blake Franklin,[2] on 19 January 2020, you, a 19-year-old man with no prior convictions, sexually offended against a five-year-old girl who was the granddaughter of your stepfather.
[2] A pseudonym.
2.On 23 November 2021 you pleaded guilty before me to: one charge of involving a child in the production of child abuse material, two charges of sexual assault of a child under the age of 16, and one charge of producing child abuse material.
3.A plea on your behalf was conducted before me on 23 and 26 November 2021 and it now falls to me to sentence you for your conduct. Your counsel, Mr Rudston submitted that whilst a custodial sentence was within range, it was not the only sentencing option.
4.The prosecutor, Mr Sprague submitted that I should impose a term of imprisonment involving a head sentence and non-parole period.
5.In arriving at an appropriate sentence, I am required by law to have regard to a variety of sometimes countervailing factors which I will outline in these sentencing remarks.[3] Some tend towards leniency and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each one the weight it deserves to arrive at a just sentence.
[3] Sentencing Act 1991 (Vic) s 5(2) (‘Sentencing Act’).
6.This case is a good example of just how difficult it can be to balance the competing factors. On the one hand you are a vulnerable young man who has never before been in trouble with the law, but on the other hand you have committed very serious offences with lasting consequences for the victim and her family.
Circumstances of the offending
7.The agreed facts upon which I sentence you are set out in the Summary of Prosecution Opening. There is no need to repeat those facts in detail. Suffice to say as follows.
8.In 2018, you moved to Australia with your mother and sister and commenced living with your stepfather, Dennis Hall,[4] in Greensborough. You had met the victim of your offences, Claire Cain,[5] on a few occasions when she had visited the Greensborough address with her sister and parents, Lisa and Scott Cain.[6] Lisa is Mr Hall’s daughter.
[4] A pseudonym.
[5] A pseudonym.
[6] Pseudonyms.
9.During these visits you occasionally took photographs of Claire with your mobile phone with her knowledge. Sometimes she played video games in your bedroom. On Sunday 19 January 2020 Claire and her family visited the Greensborough address and stayed for about two hours. During the visit Claire’s parents stayed in the living room with Mr Hall and your mother. Claire went into your bedroom to play video games.
10.You sat her on a couch and allowed her to use the video game system and you used your Samsung mobile phone to take photographs of her. You then closed the bedroom door, lowered her underwear, and exposed her vagina. You then took photographs of her exposed vagina. You then touched her vagina and took a photograph of your hand touching her vagina. You then used your fingers to separate the lips of her vagina and took another photograph of your hand in that position and her vagina. You then placed your head between her legs and licked her exposed vagina with your tongue. Claire’s parents called her name, as she wasn’t in the garden as they expected, and she emerged from your room. Before she left you told her to keep what had just happened a secret and not to tell her parents.
11.Some months later, on 5 August 2020, Claire did tell her mother about what had occurred. The next day she was taken to the police station where she participated in a video-audio recorded statement. On 25 August 2020 a search warrant was executed at your home in Greensborough. Your mobile phone was seized and later analysed. Analysis revealed four images of Claire’s vagina on your phone which were all taken on 19 January 2020. These photographs included Claire’s exposed vagina, your hand touching her exposed vagina, and your fingers separating the lips of her vagina. Analysis also revealed an altered image on your mobile phone showing Claire’s face cropped onto one of the photographs of Claire’s exposed vagina. Another two images were located of Claire’s exposed vagina which had been altered by cropping and zooming.
12.Charge 1 involving a child in the production of child abuse material relates to you taking the four photographs of Claire’s exposed vagina and you touching her vagina on 19 January 2020. Charge 2 relates to you touching Claire’s vagina, including opening the lips of her vagina, and that was a charge of sexual assault of a child under the age of 16. Charge 3, which is another charge of sexual assault of a child under the age of 16 relates to you licking Claire’s vagina. Charge 4, which is a charge of producing child abuse material, relates to the three altered images which were found on your telephone.
13.You were arrested on 25 August 2020, but because an interpreter could not be obtained you were not interviewed. You were released pending enquiries. On 1 September 2020 you were interviewed by the police with the assistance of an interpreter. This interview occurred before your telephone had been analysed. You denied the allegations of sexual assault and taking photographs which were put to you. You were interviewed again on 26 October 2020 after your telephone had been analysed. In that interview you answered no comment in relation to the allegations that were put to you. You were then charged and released on bail.
Your personal circumstances
14.Turning to your personal circumstances. These were outlined in Defence submissions and two forensic psychological reports. Dr Dion Gee saw you in-person on 18 June 2021 for an interview which lasted nearly 3 hours and Ms Gina Cidoni also interviewed you in-person for about 3 hours on 12 November 2021. Both interviews were conducted with the aid of a Thai interpreter. Dr Gee did not administer any psychometric tests because of your reduced proficiency in English and your poor reading comprehension, whereas Ms Cidoni did.
15.You are now 21 years old. You were born in Thailand in March 2000 and were raised by your grandmother until the age of six in a village approximately 600km north of Bangkok while your parents worked in the city. In 2007, your family’s finances improved, and you were able to move to Bangkok to be with your parents and sister. Your mother worked very long hours in a telephone business she established to support your family. Your father also worked but apparently had an intellectual disability and dependency issues.
16.You completed all your schooling in Thailand, obtaining the equivalent of Year 12 at the age of 17. You moved schools several times, but a feature of your experience at each school was that you were verbally and physically bullied by your peers. You were also abused by a neighbour. Your grades were consistently low in school and your step-father, Dennis Hall, noted in a character reference he provided to the court that you struggle to learn new skills and tasks.
17.After you moved to Melbourne with your mother and sister in 2018, you studied English at Melbourne Polytechnic for two years, completing your Certificate 2 in English. You reported trying hard at school and in this English course. A character reference provided by Bonnie Gill, your teacher at Melbourne Polytechnic, confirmed your positive attitude towards school and learning.
18.You began working hospitality in Thailand while you were still in high school. In Melbourne you worked in a local Thai restaurant for approximately three years and have worked there six days a week until now. Your colleagues are aware of these proceedings and have continued to offer their support. In fact, two of your colleagues have provided character references, attesting to your respectful manner and diligence in your work.
19.You have not had any previous relationships. You do not have any children.
20.Your mother and Mr Hall married in January 2020. You obtained permanent residency in 2019.
21.Your grandmother died in March 2019, soon after a cancer diagnosis. You returned to Thailand for a one-month period of mourning, although your step-father noted his surprise at the little outward emotion you displayed at her death.
22.Your father continues to live in the family home in Bangkok, and your mother provides financial assistance for him. Your father reportedly has had a brain aneurism. You told Ms Cidoni that you are worried about his condition and you have not seen him since your grandmother’s funeral.
23.Dr Gee did not formally assess your cognitive capacities, but opined that you ‘impressed as a man whose abilities were estimated to fall within the borderline to low average range (at best) of functioning’.[7] Similarly, Ms Cidoni, who not only provided a report, but gave evidence on the plea, recorded your full-scale IQ as 84, and said that you present as younger than your age. She noted that you performed better on the nonverbal component of her testing and that it was possible that the language barrier artificially reduced your overall score. In any event she concluded that you do not have an intellectual disability or learning delay.
[7] Exhibit 2 on the Plea, Psychological Report of Dr Dion Gee [21] (‘Exhibit 2’).
24.Using a test called the Vineland test Ms Cidoni evaluated your adaptive functioning – the skills of everyday living, including communication and socialisation – as very poor, in fact less than 99% of people your age. This finding is difficult to reconcile with Dr Gee’s assessment that:
'Similarly, his transition through late adolescence was generally underpinned by adaptive and pro-social experiences, albeit with him recounting/demonstrating reduced psychosexual knowledge/understandings and minimal exposure to sexual intimacy. Specifically, Mr Franklin has seemingly maintained gainful education/vocation/employment pursuits; does not present with substance use difficulties; has not seemingly laboured under mental health symptomology; does not display anti-social attitudes or a pro-criminal thinking style/beliefs; has not disclosed exposure to enduring/traumatic life events; appears to maintain some level of pro-social peer group/interpersonal connectedness; has numerous positive and pro-social connections to the broader community; and engages in a number of unstructured recreational/sporting pursuits'.[8]
[8] Ibid [8].
25.Whilst noting the impediments of linguistic, cultural and physical barriers (face masks were necessary during the evaluation) Dr Gee considered that you advanced several features consistent with ‘Autism Spectrum Disorder [ASD] without disorder of intellectual development with mild or no impairment of functional language’.[9] He recommended, 'That Mr Franklin undergo a comprehensive, multidisciplinary assessment in accordance with the National Guideline for the assessment a diagnosis of Autism Spectrum Disorder in Australia in order to better evaluate this aspect of his functioning'.[10]
[9] Ibid [10].
[10] Ibid.
26.Based on her interview and observations of you (face masks sometimes being removed) and the history provided by your mother and stepfather Ms Cidoni also reported that there were indications of ASD. In evidence Ms Cidoni said that whilst there was no multidisciplinary assessment and therefore you could not be diagnosed as having ASD according to the National Guideline, you did meet the DSM criteria and she believed you did have it. I am satisfied on the balance of probabilities that you do have ASD.
27.As ASD is a life-long neurodevelopmental disorder, Ms Cidoni concluded that it would have been present from an early age into adulthood, including at the time of offending and that it was relevant to your offending. I will come back to that point.
28.Ms Cidoni also opined that you demonstrated pronounced features of Post-Traumatic Stress Disorder (PTSD). She thought that the PTSD could have emerged as a result of your experience of severe bullying through your school years. She concluded that the symptoms of PTSD would also have been present at the time of offending although she did not consider that they had any connection with it. I found Ms Cidoni’s evidence in that regard unconvincing especially in light of Dr Gee’s report and I am not satisfied that you do in fact have PTSD.
29.In that regard Dr Gee said: 'Mr Franklin‘s formative years were generally unremarkable, being categorised as they were by a nurturing, supportive and stable home environment, a moderate degree of social/interpersonal connectedness, some level of academic attainment, and the absence of enduring and/or traumatic adverse experiences‘.[11]
[11] Ibid [8].
30.He also said, as I have mentioned before that you had ‘not disclosed exposure to enduring/traumatic life events‘.[12]
[12] Ibid.
31.Since your arrest and charge on these matters you have not breached any bail conditions or been charged with further offending.
Objective Gravity of your offending and moral culpability
32.Two factors of central importance in determining any sentence are the objective gravity of the offending and the moral culpability of the offender.
33.Any offending involving the sexual abuse of children is serious. If there was any doubt about the seriousness of your offences the maximum penalty of 10 years imprisonment for each of them make it perfectly clear. So too does the fact that all your offences are what is known as serious offender offences – I will return to the meaning of that later – and that the two sexual assault of a child under 16 offences, charges 2 and 3, are standard sentence offences with the standard sentence for offences of mid-range objective seriousness set at 4 years. There is also a presumed minimum non-parole period of at least 60 per cent of the total effective head sentence because of the fact I am sentencing you for standard sentence offences.[13]
[13] Sentencing Act (n 3) s 11A.
34.It is true that your offending lacked a number of aggravating features. It was isolated and appeared opportunistic with no evidence of grooming or premeditation, there was no force or other coercion and there is no evidence that you shared the photographs you took. However, it was still objectively serious for the following reasons:
·Your victim, Claire, was very young, had only just turned 5.
·The activity you engaged in was potentially corrupting of a very young child.
·There was an almost 15-year age gap between the two of you.
·You took advantage of your position as a family member and breached the trust placed in you by the victim, her parents and your mother and stepfather.
·The two sexual assaults were serious instances of that type of offending, particularly the licking of Claire’s vagina.
·Your telling Claire to keep what happened a secret not only concealed your crimes, it extended your control and influence beyond the actual offending. It also had the dual effects of isolating Claire from her parents and delaying her understanding of what had happened.
·Your taking explicit photographs amounted to a separate and distinct form of sexual exploitation of Claire as was your subsequent manipulation of those photographs and use of them to masturbate. Once these photographs were taken, Claire had no control of what you might do with them and as it turned out you kept them on your phone for 7 months and used them for your own sexual gratification.
·The fact you kept the photos for 7 months tends to undermine any claim that your actions were purely impulsive. You had time to reflect on what you did and delete the photographs, but you did not.
35.You told Dr Gee that at the time you were committing the offences you did not believe what you were doing was wrong. This statement is belied by your attempts to conceal your conduct by shutting the door to your room and telling Claire not to tell her parents what had occurred, and I do not accept it. Whilst you may not have fully appreciated the likely impact of your conduct on Claire or her or your family, nor how seriously the law regards such crimes, you clearly knew that what you were doing was morally wrong at the time. In this regard it is notable that you falsely denied the allegations when you were first interviewed by the police.
36.In her report Ms Cidoni said, 'The likelihood that you may have engaged in sexual behaviours without understanding the implications of your actions, or the law, is high’.[14]
[14] Exhibit 3 on the Plea, Psychological Report of Ms Gina Cidoni [87].
37.She accepted in evidence that you knew what you were doing was wrong but said that your full understanding of how wrong it was came after. As to the link between your ASD and conduct she said that you were deprived of the normal sexual experiences of people your age and that you had sexual feelings and nowhere to take them. She agreed that it was essentially 'easier' for you to engage sexually with your 5-year-old victim than a person of your own age.
38.By contrast Dr Gee said:
'Regarding the nexus between Mr Franklin’s impaired mental functioning and the index offences, it is difficult to assert the presence of a direct causal connection with any association meditated through his psycho-sexual immaturity, interpersonal/social skills, deficits, cognitive distortions and distorted sexual scripts’.[15]
[15] Exhibit 2 (n 7) [16].
39.And later on in his report 'Thus whilst Mr Franklin’s impaired mental functioning may have predisposed him to act in an aberrant manner there does not appear to be a direct causal nexus between the two'.[16]
[16] Ibid.
40.In my view the link between your ASD and offending is tenuous at best. I am not satisfied there is a material causal nexus such as to enliven the principles of Verdins.[17] To the extent your ASD may explain your conduct I am not satisfied that it has any bearing on your moral culpability.
[17] R v Verdins [2007] VSCA 102 (‘Verdins’).
41.Similarly, whilst I take your youth and immaturity and intellectual and social functioning into account, I do not consider those factors have any significant effect on your moral culpability, which I regard as high.
Current Sentencing Practices
42.One of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both.[18]
[18] The rationale for doing this is to promote consistency of approach in sentencing, particularly, the application of relevant sentencing principles.
43.Whilst no two cases are ever truly the same, and other sentences are not precedents to be applied or distinguished, sentences imposed in comparable cases may provide a convenient yardstick against which to measure any sentence proposed in the instant case.
44.In the case of offences subject to the standard sentence regime, such as your charges 2 and 3, only sentences imposed under that regime may be considered, in other words sentences imposed for offences committed after 1 February 2018.[19] This effectively means there are no useful sentencing statistics for those offences and a limited number of comparable cases.
[19] Sentencing Act (n 3) s 5B(2)(b).
45.Mr Sprague helpfully tendered a table of cases dealing with standard sentence offences of sexual assault of a child under 16, as well as other offences, and referred me to four cases out of that table, in particular, as being the most comparable, two Court of Appeal and two County Court sentences. I have had regard to the cases in that table. I agree the most similar case is that of Tobin.[20]
[20] Tobin (a pseudonym) v The Queen [2021] VSCA 180.
46.In that case the offender was 20 years old, and the victim was 3 years and 11 months. She was the step niece of the offender. He pleaded guilty to a standard sentence charge of sexual assault of a child under 16, consisting of rubbing the victim's vagina and licking her anus, and also to a charge of sexual penetration of a child under 16 years of age, consisting of inserting his finger into her vagina. In relation to the sexual assault of a child under 16 charge, he was sentenced to three years imprisonment, one year of which was cumulative upon the eight years imposed on the other charge. The Court of Appeal did not alter that sentence.
47.However, as I said before no two cases are ever truly the same, for example in that case of Tobin, he had a significant prior criminal history, although no prior sexual offending. Personal and mitigating circumstances always differ. There is no single correct sentence and sentences imposed in other cases are not binding. Ultimately my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case.
Impact of your offending
48.Other matters I am required to take into account is the impact of your offending on your victims and their personal circumstances.[21]
[21] Sentencing Act (n 3) ss 5(2)(daa), (da) and (db).
49.There is a legal presumption that premature sexual activity causes long term and serious physical and psychological harm to children regardless of consent.[22] Further, the courts have recognised that rehabilitation of children who have been sexually abused may be more difficult than rehabilitation of the offender. In that regard, it was said in a case called Toomey:
Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self-esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired.[23]
[22] Clarkson v The Queen (2011) 32 VR 361, 368 [26], 371 [33]; and Adamson v R [2015] VSCA 194, [56].
[23] Director of Public Prosecutions v Toomey [2006] VSCA 90, [22] (‘Toomey’).
50.The three Victim Impact Statements tendered and read to the Court in this case bear witness to the legal presumption of harm. The first was from Angie Willis,[24] play therapist, on behalf of the victim, Claire Cain. The second was from Lisa Cain, Claire’s mother. The third was from Claire’s father, Scott Cain.
[24] A pseudonym.
51.Ms Willis’ statement was written from a professional perspective and described the symptoms of trauma that Claire displayed in therapy, and the issues that they have been working through together.
52.Mrs and Mr Cain’s statements touch on similar themes and it is clear that Claire has been severely affected by the offending.
53.Mrs Cain described Claire before the offending as being ‘fearless, brave, confident, independent’ and noted with sadness that, ‘that child is no longer there’. Mr Cain described Claire before the offending as a ‘bold little girl ready to explore and take on the world’ but who is now ‘scared, traumatised’ and cannot be alone. Claire has become dependent on her mother, reluctant to attend school, scared to be in new environments and cannot sleep by herself.
54.It is not just Claire who has been affected by your offending, her entire family have been profoundly affected. Claire’s older sister has had to deal with Claire’s changed behaviour, her outbursts and confusion. Mrs Cain has ‘suffered from anxiety and often panic’ especially when she cannot see her children. Her trust in people has been negatively impacted. She has also, at least for the time being, lost her relationship with her father, Dennis Hall. She feels unable to talk to other members of her family about the offending and is therefore deprived of their support. There have also been financial, employment and social detriments as Mrs Cain left work to care for Claire and Mr Cain reported that the stress of the situation impacted his ability to work and socialise.
55.At this point, I think it is important to mention the effect of your crimes on your own family – whether or not they could be considered victims in the normal sense. I acknowledge their pain which further illustrates the wide-reaching consequences of sexual offending such as yours, particularly when it occurs within families.
56.In a letter he provided to the court Mr Hall said your ‘mother and sisters are sorrowful and miserable about it, and ashamed as I am'. He also said, 'There will be sadness in the family forever'.
57.Finally, both Mr and Mrs Cain describe a sense of guilt at not protecting their daughter. It is not uncommon for parents to feel this way in this situation, but I assure them they are in no way to blame. They were entitled to assume you would not molest their daughter. The responsibility of the offending rests on no one except you.
Plea of Guilty, co-operation and remorse
58.You are entitled to a significant discount in your sentence for the fact you have pleaded guilty and did so at a very early stage, in the committal mention phase. In so doing you facilitated the course of justice and took legal responsibility for your crimes. Moreover, our Court of Appeal has recently emphasised the need for sentences to reflect the high value of pleas of guilty in the current COVID-19 environment where the legal system is under considerable strain.[25]
[25] See, eg, Worboyes v The Queen [2021] VSCA 169 [39].
59.Despite your initial denials to police and subsequent no comment record of interview, I am satisfied that your plea of guilty is accompanied by genuine remorse and I take that into account in your favour. In that regard, you have expressed remorse to your family, to Dr Gee and in a letter to the Court.
60.I'll just read one sentence from the letter you wrote to the court, 'I very sorry to Claire family, I think if I can talk to Claire family it will get better. I don’t want do this again'.
61.Whilst some caution must attach to belated expressions of remorse, particularly in letters to the court, I accept in your case that you are genuine. I also note that whilst there was strong evidence, independent of Claire, of your offending in charges 1, 2 and 4 in the way of photographs, there was no such independent evidence in relation to charge 3, which is the licking of her vagina, but you still pleaded guilty. Similarly, you were honest in your account to Dr Gee that you used the photographs to masturbate, there being no other evidence of that.
Your character and risk of reoffending
62.You have no prior convictions. You have a limited but good work history and are well regarded by your colleagues at work, as attested to in their character references. You are entitled to be sentenced as a person of otherwise good character, acknowledging that your youth means that in a lot of ways have not had time to develop your character.
63.Your likelihood of reoffending was assessed by Dr Gee. He was not satisfied that you fulfilled the criteria for a paedophilic disorder although he noted that there were features of the offending consistent with paedophilic disorder. He described your offending thus: 'It appears that Mr Franklin‘s sexually aberrant behaviour is best construed as an unsohpicticalted ill-conceived and naiive, albeit deviant and illegal, "adolencent" attempt at sexual exploration in a then socally, emotionally and sexually imagate 21 year old male'.[26]
[26] Exhibit 2 (n 7) [12].
64.As to your risk, he said: 'Mr Franklin currently demonstrates a moderate risk of reoffending sexually in the future, meaning he is as likely as the typical convicted sexual offender to reoffend’.[27] And also:
'At this time it is more likely that if any risk of sexual violence posed by Mr Franklin was to reoccur it would be in regard to contact sexual offences against pre-pubescent/pubescent female children whom he has formed a social connection with. Coupled with this, Mr Franklin also demonstrates an increased potential to access - and indeed produce - child exploitation material’.[28]
[27] Ibid [14].
[28] Ibid [15].
65.He also said, in relation to measures to reduce your risk:
'His reduced proficiency with English and compromised comprehension makes him less suitable for participation in a group-based sexual offender intervention program (SOIP) like those runs through Corrections Victoria's Forensic Intervention Service/Community Corrections. Given this it instead appears appropriate that Mr Franklin address those factors associated with his aberrant behaviour in a one-to-one format with a suitably experienced psychologist who is proficient with Thai, or who looked to utilise the aid of an experienced interpreter’.[29]
[29] Ibid [51].
66.Ms Cidoni agreed that any treatment would best occur in a private clinic outside of the prison environment.
67.You enjoy strong family support and that bodes well for your future. Apart from anything else, as Ms Cidoni mentioned it is likely that they will be motivated and financially able to support any future treatment in the community.
68.Given your youth, remorse, the supports available and the isolated nature of the offending I consider your prospects of rehabilitation to be reasonable to good.
Risk of deportation
69.I take into account your concern that you may be deported as a consequence of the sentence that I will impose. Although you have not been in Australia for long you have a close bond with your mother and, it appears, your step-father. I have no evidence before me as to the likelihood that you will be deported, and I must not speculate. It is clear that the sentence I impose, being more than 12 months, will automatically mean that you will not pass the character test under the Migration Act1958 (Cth), although it seems the Minister still retains a discretion not to deport you. I accept the worry of what will happen and the prospect that you will be returned to Thailand will make your time in custody harder.
The burden of imprisonment
70.In determining the appropriate sentence, I must consider how a term of imprisonment would be likely to impact you, particularly given your ASD and social and intellectual impairments and limitations.
71.There are a number of reasons why a term of imprisonment may be particularly difficult for you and I take them all into account in your favour.
72.First, you are a young man of 21 with no prior convictions of any sort. Facing a term of imprisonment for the first time is difficult for anyone, let alone someone of your age with absolutely no prior involvement in the justice system.
73.Secondly, your ASD and other social and intellectual limitations will probably mean that the experience of prison will be harder for you than someone without those conditions. This is the fifth limb of a case called Verdins.[30]
[30] Verdins (n 17).
74.Thirdly, it is likely that imprisonment will have a detrimental effect on your mental state. I accept the evidence of Ms Cidoni in that respect. This is the sixth limb of Verdins.[31]
[31] Ibid.
75.Fourthly, your cultural background and limited English may mean you will feel more isolated in prison than someone born in Australia or fluent in English.
76.Finally, although this is not peculiar to you, you are being sentenced during the COVID-19 pandemic. I accept that a term of imprisonment during the pandemic is generally harder than at other times. The requirement to quarantine, the curtailment of various activities and programs, the reduction or suspension of personal visits and the occasional lockdowns are all additional burdens.
Purposes of Sentencing
77.In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 (Vic) (‘Sentencing Act 1991’) prescribes the purposes, indeed the only purposes, for which a sentence may be imposed. These are just punishment, deterrence, rehabilitation, denunciation, and protection of the community. I am obliged not to impose a more severe sentence than is necessary to achieve those sentencing purposes. A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required. Further, when there are multiple charges, such as here, the total effective sentence must not offend the principle of totality. What that means is that you must not be punished any more than is proportionate and appropriate to your overall criminality.
78.In your case, as I have already outlined, those general sentencing principles are qualified by some specific provisions applicable to you. That is, charges 2 and 3 are standard sentence offences and all charges are serious offender offences. The methodology for sentencing for standard sentence offences is now settled and I do not need to repeat it here.[32]
[32] Brown v The Queen [2019] VSCA 216 - The methodology for sentencing standard sentence offences is not that I engage in a two-step process of first assessing the objective seriousness of the offence compared to some hypothetical mid-range offence and then work up or down depending on personal circumstances or other factors. Rather, I must take into account the standard sentence and standard non-parole period in the same way as I take into account the maximum penalty, and indeed all other relevant sentencing factors, to arrive at an appropriate sentence by instinctive synthesis.
79.The consequences of all 4 charges being serious offender offences, given that I intend to impose a term of imprisonment on charges 1 and 2, is that for charges 3 and 4 you will be a serious sexual offender. I will then be required to consider protection of the community as the principal sentencing purpose and will be entitled to impose a disproportionate sentence to achieve that purpose. Further, your status as a serious sexual offender gives rise to a statutory presumption of cumulation in respect of the individual sentences. The more serious the overall offending the more that presumption will operate to moderate the principle of totality.[33]
[33] DPP v Bales [2015] VSCA 261, [38]; and Mush v The Queen [2019] VSCA 307, [89]-[91].
80.The prosecution has not submitted that a disproportionate sentence is necessary and I am satisfied that I have enough sentencing discretion to achieve the purpose of community protection in your case without doing so. Similarly, I consider that the balancing of the presumption of cumulation and the principle of totality requires that I not order full cumulation of my sentences. Indeed, I consider I need to order substantial concurrency of sentences in order to avoid a crushing and wholly disproportionate sentence. Therefore, pursuant to s 6E of the Sentencing Act 1991, I ‘otherwise direct’ to give effect to my orders for cumulation and concurrency.
81.The courts have repeatedly emphasised that in sentencing for contact sexual offences against children general deterrence and denunciation are paramount sentencing considerations. This applies particularly to offenders like you who are entrusted with the care of their victims, whether as family members or otherwise. Anyone who is tempted to offend against children in the belief they can do so with impunity needs to know that when their crimes come to light, they will be punished severely. The case of Toomey, to which I have previously referred, emphasised the need for such sentences to vindicate not only the individual victims, but also the values of society, 'fundamental to which is the protection of its children'.[34]
[34] Toomey (n 23) [17], [22] per Vincent J.
82.The Court in Toomey also made the point that crimes such as yours are extremely serious not only because they impact the individual victims, but because they damage the community as a whole. To quote again:
'The exposure over recent years of the extent of the incidents of abuse of children in our community by persons entrusted with their care has created much distrust at all levels and threatened the very capacity of adults to interact in a normal healthy fashion with them'.[35]
[35] Ibid [20] per Vincent J.
83.In the case of sexual abuse by a trusted family member the damage to the family unit is of course also immense as the victim impact statements in this case illustrate.
84.Similarly, appellate courts throughout Australia have emphasised the paramount importance of general deterrence in sentencing for offences involving the production of child abuse material which can so easily be shared on the internet. I acknowledge you did not do that.
85.Although not as important as general deterrence and denunciation, the principles of specific deterrence and community protection do have a role to play in your case. That is, as well as deterring others, my sentence needs to deter you from reoffending and to protect the community from you.
86.Of course, my sentence must also be just. It must reflect the mitigating factors I have already outlined in detail. It should also promote your rehabilitation and in that regard your youth is important. The law recognises the paramount importance of promoting the rehabilitation of young offenders, such as you. Not only is this because young people have the greatest potential to rehabilitate, but also because it is by their rehabilitation that society will be best protected. Whilst the importance of rehabilitation in the sentencing equation declines as the seriousness of the offence increases – and your crimes were serious – I still consider your rehabilitation to be important. My sentence will allow for your rehabilitation by the fixing of a non-parole period.
87.I am obliged to say how my sentences on charges 2 and 3 relate to the standard sentence of 4 years applicable to those charges. I consider it appropriate, despite my assessment of the gravity of the offending, to impose a sentence less than the standard sentence for each offence. This is because of the mitigating factors which apply to you and also because to do otherwise whilst also reflecting the discrete offending by orders for partial cumulation would result in an unjust and disproportionate sentence. Further, I consider it in the interests of justice to fix a non-parole period less than the presumed minimum of 60 per cent of the head sentence because of your personal circumstances and potential for rehabilitation.
Sentence
88.Balancing all the competing factors as best I can I sentence you as follows.
89.On charge 1 you are convicted and sentenced to two years and six months imprisonment. On charge 2 you are convicted and sentences to two years and ten months imprisonment. On charge 3 you are convicted and sentenced to three years imprisonment, and that is the base sentence. On charge 4 you are convicted and sentenced to two years imprisonment.
90.I order that two months of the sentence on charge 1, two months of the sentence of charge 2 and two months of the sentence on charge 4 be cumulative upon each other, and upon the sentence on charge 3. That makes a total effective sentence of 42 months, or three years and six months.
91.In respect of that sentence, I fix a non-parole period of 22 months, or one year and ten months. That is the earliest time at which you can be released from prison. It is not up to me whether you are released at that time, it is up to the Adult Parole Board.
Presentence Detention
92.I declare that you have served no days pre-sentence detention, in respect of this sentence and order that this declaration be entered in the records of the court.
Section 6AAA
93.If you had not pleaded not guilty to these charges and then been found guilty by a jury, I would have sentenced you to a total effective sentence of imprisonment of five and a half years with a non-parole period of 3 years 6 months.
Serious Offender declaration
94.Pursuant to s 6F of the Sentencing Act 1991 I declare that in respect of charges 3 and 4 you have been sentenced as a serious sexual offender and direct that fact be entered in the records of the court.
Sex Offender Registration (SORA)
95.The four charges to which you have pleaded guilty are class 2 offences pursuant to schedule 1 of the Sex Offenders Registration Act 2004 (Vic). That means that upon being sentenced you automatically become a registerable offender and must comply with the reporting obligations under that Act. The mandatory reporting period is eight years.
96.The Sex Offenders Registration Act 2004 (Vic) provides that you must be given a notice setting out your reporting obligations under the Act and what will happen if you do not comply with those obligations.
97.I will arrange for that notice to be given to you here in court, my associate will give it to you in a moment. So there are various obligations you have to apply with, and the notice sets out what those obligations are, and if you don’t comply it is an offence. I'm not going to ask you to acknowledge in writing those obligations because you will need to have them interpreted to you in full to ensure that you understand them. So at this stage all that’s going to happen is you're going to be given a copy of the notice. But essentially, you're required to give details of your address, occupation, cars, internet provider, social media usernames, passwords, and the like. And you'll have to have annual reporting at a police station and seek permission to travel overseas. So I will now get the document provided straight to you.
Custody Management Issues
98.I'm going to direct that the two psychological reports be provided to Corrections Victoria for their assistance, and Forensic Intervention Services will no doubt request a copy of them, and they should be provided to them as well.
Ancillary orders
99.The Prosecution have made applications for ancillary orders, which were not opposed by the defence. I am satisfied it is appropriate to make each of those orders in the circumstances of this case. Accordingly, I order as follows: a disposal order regarding the Samsung mobile phone.
(Discussion follows)
100.HER HONOUR: Are there any other custody management issues you wanted me to note at this stage, Mr Battersby?
101.MR BATTERSBY: No, Your Honour, nothing that hasn’t been noted in the sentencing remarks, just age and vulnerability due to the defendant's first time in custody.
102.HER HONOUR: Yes, okay, thank you. Mr Franklin, so I know that was a long sentence; I need to explain why I'm going what I'm doing - that’s why it takes so long. But did you understand that the sentence I've imposed is a total effective sentence of three and a half years with a non-parole period of one year and 10 months?
103.OFFENDER: (Through Interpreter) I understood.
104.HER HONOUR: All right. I'll leave the bench and I'll allow Mr Franklin just to say goodbye to his mother and stepfather and to speak to you as well Mr Battersby.
105.MR BATTERSBY: Thank you, Your Honour, I'm grateful for that.
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