Director of Public Prosecutions v Garth

[2017] VCC 838

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 16-01691

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW GARTH

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JUDGE:	HIS HONOUR JUDGE W. STUART
WHERE HELD:	Bendigo
DATE OF HEARING:
DATE OF SENTENCE:	21 June 2017
CASE MAY BE CITED AS:	DPP v Garth
MEDIUM NEUTRAL CITATION:	[2017] VCC 838

EX TEMPORE REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin
For the Accused	Mr J. Lowy

HIS HONOUR:

1You may remain seated Mr Garth.  Mathew Troy Joseph Garth.  You have pleaded guilty to one charge of sexual penetration of a child under the age of 16.  This is a representative charge, covering two acts of penial penetration of the victims vagina.  The maximum penalty is ten years' imprisonment.

2There are unusual features to this offending which I will come to in due course.

3At the time of the offending you were 25 years old and the victim was 15 years old, three months shy of her sixteenth birthday.  You met one another at the Mulligrubs Play Centre in Bendigo.  You both met some months beforehand and you had told each told each other your respective ages, being 15 years of age and 25 years of age.

4Following the meeting you exchanged multiple Facebook messages acknowledging mutual feelings for each other.  You informed her at one stage via one of these messages that nothing could happen between the two of you due to her young age.  You also told her that nothing could happen between them and that you did not want to get into trouble and you did not want it to be classed as rape and you did not want to be charged.

5Nonetheless, on 8 April 2016, the complainant attended at your address in the company of friends where, during the course of the evening, you all consumed alcohol.  The two of you retired to your bedroom where you started to watch a movie.  You then began cuddling and kissing intimately before removing each other's clothes.

6You were on top of her and inserted your penis into her vagina and commenced sexual intercourse.  You were not wearing a condom and you ejaculated on to a piece of clothing, having removed your penis from her vagina beforehand.  The two of you then slept.

7The next morning you drove her home where she retrieved some medication. You then purchased some condoms at a service station in Long Gully, Bendigo and you both returned to your home.

8Again, in the bedroom the two of you had sexual intercourse, beginning by removing each other's clothing.  Again, you lay on top of her and inserted your penis into her vagina and then removed your penis from her to ejaculate into a piece of clothing.

9After this offending which is the subject of the represented charge on the indictment, of sexual penetration of a child under the age of 16.

10You then drove to Torquay where you spent the day.  During the course of that day the two of you kissed.

11A short time after these incidents the complainant’s mother became aware of the relationship between the two of you.  She attended at your address and confronted you in the presence of three other persons.  You admitted to having sexual intercourse with her.

12The complainant’s mother banned the complainant from seeing you.  However, the complainant then created a false Facebook profile in order to re-establish contact with you.

13The Facebook exchanges are found at pages 45 to 101, inclusive, in the depositions and it is plain that the relationship between the two of you was not really a sexual one but a romantic one.

14Again, the mother became aware of this contact and the complainant admitted to creating the profile and contacting you.  The police became involved and you were arrested and interviewed at the Bendigo police station on 25 May 2016.  You were cooperative with them and your demeanour with the police was good.  You confessed to having sexual intercourse with the complainant on two occasions.

15You admitted to the confrontation with the complainant’s mother, which according to the complainant’s mother was as follows, p.17 of the depositions.  In which the complainant’s mother said:  "What you have done with my daughter is wrong".  You said, "I know".  She said, "I'm having you charged".  You said, "I understand, I know".  She said, "Do you realise that you could have damaged my daughter and she's 15 years old".  You said, "Yes, I know".

16Thus to all concerned you were frank and open in what you had done.  You knew what you were doing, you knew before you had intercourse with the complainant that you should not have done so, but you did.  You were nine years older than her.  The purpose of this offence is to protect children under the age of 16.

17This offending can encompass a very wide range of circumstances, from predatory behaviour where there is grooming to where there are lies told about an accused persons age and deceptions utilised.  Those aggravating features are entirely absent in this case.

18Whilst it does not excuse your behaviour, it is plain that these were consensual acts of intercourse and intercourse in the context of what both of you regarded as a genuine, romantic relationship.  Albeit, the difference in the age is of significance.

19You have a criminal history that encompasses but one charge, which you were dealt with in January 2010 at the Castlemaine Magistrates' Court.  You were charged with being a learner driver, failing to have a qualified driver with you and were dealt with by way of an adjourned undertaking for a period of only four months without conviction.  An unsurprising result.

20Thus, you have no criminal history whatsoever of any relevance for my sentencing purposes.

21You are entitled to call upon your excellent background in that regard and I am informed and accept that you have not been in any trouble since.

22Not only was your offending not predatory but in the circumstances as I have described, you also acknowledge the wrongness of what you have done, not only to the complainants mother but also to the police and during the course of your interview with psychologist Warren Simmons.

23Thus, you have demonstrated insight and remorse.  The matter proceeded by way of direct hand-up brief or trial and you made a full confessional statement to the police, pleading guilty at the earliest opportunity.

24I use that guilty plea in two ways.  First, as further evidence of your remorse and your insight and second, it is the utility of that plea of guilty has meant that the complainant has not had to relive these matters in anyway and there has been no need for any contested committal. 

25You are now 27 years of age, the youngest of three.  You have throughout been raised in a loving and happy home environment.  You had been in a lengthy relationship which ended the year previous to this offending and that apparently was a traumatic event when that partner ended that relationship.

26You are now in a new relationship and your partner is 20 weeks pregnant. Thus, you are in a stable family and partnership environment.

27You left school at the conclusion of year 10 and, according to Mr Simmons, you are of an average intelligence.  You did not perform well at school, only through lack of attention.

28Other than for a period of approximately one year when you were 19 years old, you have worked consistently throughout the whole of your adult life.  In particular you have been employed as a fork life drive for the last six years, working nightshifts of some 40 to 50 hours per week.  Indeed, you finished at 4 am this morning.

29The psychological report of Mr Simmons is entirely unremarkable.  Other than in this regard, wherein the penultimate paragraph of Mr Simmons reports, he notes:

"There was no evidence of any paedophilia, with his victim appearing to be pubertal and clearly adult looking. In addition, there was no evidence of any deviant sexual interests".

30The concluding paragraph, Mr Simmons continues:

"While disposition is a matter for the Court, it was felt that there was little in the way of treatment that Mr Garth could readily undertake that would be focus of his offending behaviour.  While he may benefit from some treatment related to his anxiety, there was no obvious connection between this and his offending behaviour.  Mr Garth has certainly found the judicial process aversive and it has served to underline the seriousness of his behaviour in a man who has no prior criminal history.  With regard to the risk of re-offence, the STATIC 99 was completed on Mr Garth, an actuarial assessment gives an indication of the likelihood of further offences.  Mr Garth scored zero on this instrument, indicating that he is at the lowest risk level of reoffending, a score lower than that obtained most frequently by sex offenders".

31Having regard to your background, in particular your excellent work record, the absence of any predatory aspect of this behaviour, you remorse, your early plea of guilty and your acknowledgement of the wrongness of your acts, it is plain that your prospects of re-offending amount to zero as best can be said at this stage.

32This offence is of course always a serious offence.  But having regard to the mitigating factors that I have referred to, I am satisfied that specific deterrents, that is deterring you, is of little moment in this particular case.

33General deterrence, deterring others is of some moment in this case.  Though less so than in other cases of more egregious behaviour, such as where there has been grooming or predatory conduct.

34There is some need for punishment and this can be appropriately accommodated by a sentence of a Community Corrections Order with a period of unpaid community service work.

35In all the circumstances I am satisfied that the appropriate course is to release you on a Community Corrections Order for a period of 12 months, with the condition that during that period of 12 months you perform 100 hours of unpaid community service work.

36I have reduced that amount from the 200 I was initially considering by dint of the fact that you are working hard and are the sole bread winner of the family, with your first child shortly to be born.

37Although I have considered whether the Community Corrections Order should be with or without conviction I have determined that, given the gravity of the offending, it should be with conviction.

38I further declare that you are liable to be placed on the - what is the formality of it Mr - the 15.  Is that automatic or do I have to make a declaration.

39MR DEVLIN:  No, you've got to make the declarations on a period of 15 years.

40HIS HONOUR:  What's the act again, the statement.

41MR LOWY:  Sexual penetration.

42MR DEVLIN:  The Sexual Offences Registration Act.

43HIS HONOUR:  The Sexual Offences Registration Act.

44MR DEVLIN:  2004.

45HIS HONOUR:  Yes.

46MR DEVLIN:  There's a mandatory registration period.

47HIS HONOUR:  What's the section, hang on.

48MR DEVLIN: Section 34. Sorry, I'll go to my notes. I can't find my notes but I'll go to the Act, Your Honour. Yes, s.34 under the Sex Offenders Registration Act 2004, length of reporting period, "Registrable offenders must continue to comply with the reporting obligations imposed by this", part 4(1)(b), "15 years if he" so Roman numeral one. So s.34(1)(b)(i), "Has only ever been found guilty of a single class one offence", and I can confirm that the offence before Your Honour is a class one offence. So the mandatory reporting obligation is 15 years.

49HIS HONOUR:  I declare that you are registrable offender, under the Sex Offenders Registration Act 2004.

50Pursuant to provisions of s.34(1)(b), the offence of sexual penetration of a child under the age of 16, being a class one offence, you are liable for registration, for reporting obligations for a period of 15 years.

51MR DEVLIN:  Yes, Your Honour.

52HIS HONOUR:  Stand up Mr Garth.  Are you prepared to enter into that Community Corrections Order with conviction and with a condition that you perform 100 hours unpaid community service work, over the period of one year.

53OFFENDER:  Yes.

54HIS HONOUR:  Very well, take a seat.

55(At this stage the court proceeded with another matter.)

56I think this court order has to say that he is ‑ ‑ ‑

57MR BROWN:  Six (indistinct), I think the dates on the left.

58HIS HONOUR:  Yes.

59MR BROWN:  It doesn't - it's ‑ ‑ ‑

60HIS HONOUR:  I see.

61MR BROWN:  Yes, under the charge, yes, that's right.

62HIS HONOUR:  All right.  Does this have to be acknowledged in my presence, the registration?  All right, well I'll give you that back for the moment.  Why is there two pages of this?  Yes, just give me another look, I better - yes.  Provide that to counsel.  Yes, thank you Mr Devlin, Mr Lowy.

63MR LOWY:  Thank you, Your Honour.

64(At this stage the court proceeded with another matter.)

65HIS HONOUR:  Mr Garth can step down from the dock.  Ten o'clock tomorrow morning.

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