Director of Public Prosecutions v Gay

[2020] VCC 548

IN THE COUNTY COURT OF VICTORIA  Revised
 Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01917

DIRECTOR OF PUBLIC PROSECUTIONS

v

JEREMY GAY

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	1 May 2020
CASE MAY BE CITED AS:	DPP v Gay
MEDIUM NEUTRAL CITATION:	[2020] VCC 548

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore
For the Accused	Mr J. Hofman

HIS HONOUR:

1Jeremy Gay, you are to be sentenced for one charge of sexual penetration of a child under 16, and two charges of using a carriage service to transmit indecent communication to a person under 16, contrary to s.574.27A of the Commonwealth Criminal Code. 

2The relevant maximum sentences are 15 years' imprisonment for sexual penetration of child under 16, and seven years' imprisonment for the Commonwealth offence. 

3You are also to be sentenced for the summary offence of contravening a condition of bail.  The maximum sentence, as I understand, is three months' imprisonment. 

4You pleaded guilty before me on 12 November 2019.  On 14 February 2020, it was necessary to arraign you on a second amended indictment filed over the first.  You again pleaded guilty to the same charges.   When interviewed by police on 14 June 2019, you made a full and detailed confession.  You pleaded guilty at committal in September 2019 after a hand-up brief procedure. 

5You receive the benefit of an early plea of guilty and that high level of cooperation in the  proceeding.  You plea has facilitated the interests of justice and expressed acceptance of responsibility and remorse.  Your young victims have not had to give evidence. 

6At your plea hearing, which ran on 12 November 2019 and 14 February 2020, Mr Moore, for the Crown, tendered a written summary of prosecution opening and the victim impact statements of Kaylee McManus[1], Chloe Robinson[2], Mia Brennan[3], Karen Maxwell[4], Lynette Riley[5] and Liza Cole[6]. 

[1] A pseudonym.

[2] A pseudonym.

[3] A pseudonym.

[4] A pseudonym.

[5] A pseudonym.

[6] A pseudonym.

7Mr Hofman, for you, tendered the forensic psychological report of Ian McKinnon, dated 25 February 2019, and a number of medical and like reports related to your delayed growth and disability, assessed when a child. 
Mr Hofman also provided a written outline of plea submissions.

8On 12 November 2019, I requested, under s.80 of the Sentencing Act, further reports, including a justice plan by Disability Client Services under Department of Health and Human Services, a Forensicare psychiatric report and a report as to your suitability for a community corrections order.  I have received those reports. 

9The circumstances of your offending are set out in the Crown summary, tendered as Exhibit A.  The victims of your offending were Mia Brennan, aged 15, Kaylee Robinson, aged 14, and Chloe McManus, also aged 14.  You were 22 at the time of offending.  However, I note that you are a client of Disability Client Services and suffer an intellectual disability. 

10You met all three girls on an internet application named Snapchat.  It is partially explained at paragraph 4 of the Crown summary, which states:

'Snapchat is a mobile messaging service from Snap Inc. that sends a photo or video to someone that lasts only up to 10 seconds before it disappears.  During that time, the recipient can take a screenshot and the sender is notified that it was taken.  This application identifies persons listed in your phone contacts and persons who are connected to these persons.'

11The offence of sexual penetration (Charge 1) was committed against Mia Brennan.  It represents four occasions of penetration between April 2018 and May 2019.  Early in the period, you had sent to her on Snapchat a naked photograph of yourself.  There were three acts of penile/vaginal penetration and one of anal penetration.  However, you quickly desisted from that when Ms Brennan said that it hurt. It seems that at least two occasions of vaginal penetration occurred over a three day period at your home in Sebastopol, Ballarat.  All occasions were at your home, where you lived with your mother. 

12You did not actually meet up with the other two girls, the victims of Charge 2 and 3, who seemed to have lived in the Gippsland area and knew each other.  Contact was electronic, in social media and by mobile phone.  You sent a naked image of yourself to both; your penis was visible.  I was told that it was the same photograph.

13You requested to meet with Kaylee McManus (Charge 3).  The indictment alleges that both Charge 2 and 3 happened in April 2019. 

14Also, in April 2019, you were bailed with a condition that you not use social media.  You breached this by continuing to use an number of forms of that; this is the summary offence before me. 

15I agree with Mr Hofman, for you, that your offences were unsophisticated examples of this kind of offending.  This is consistent with your disability. 

16The tendered victim impact statement are by your three teenage victims and their mothers.  The three girls have suffered loss of trust, fear and social isolation.  There is depression and anxiety.  School, family life, sleep and eating patterns have been affected.  Their mothers described broad effect upon family, their own emotional distress and feelings of helplessness.  There is worry and anxiety about their daughters, their behaviour and the impact what you did may have upon them. I am not complete.  There has been substantial victim impact and this must be taken into account in my sentence of you. 

17You are now aged 23.  You were 21 and 22 at the time of offending.  As stated, you suffer intellectual disability.  You were raised by your mother, who also suffers that, and your grandparents.  You were exposed early to alcoholism, violence and neglect.  The Department of Health And Human Services - possibly then the Department of Human Services - were involved at two years and you lived with your grandparents until 16. 

18Inevitably, there were serious difficulties at school and specialist assistance early on.  You were psychologically assessed with intellectual disability at 11 years in 2007, but it appears not made eligible for Department of Human Service support under the Disability Act until 2014.  There was a period of homelessness in mid to late teenage. 

19Employment has been limited.  After school, you were packing boxes for about two years.  At the time of your offending, you lived with your mother in Ballarat.  I am told that you have no drug or alcohol problem. 

20Your criminal record states two prior offences, unlawful assault in 2014, when 17, and breach of a family violence intervention order in 2017. You were not convicted on either occasion. Mr Hofman informed me of a number of pending matters in the Magistrates' Court for offending similar to that before me. Time of offending for these pending matters predates these offences. I was told that they occurred in 2016 to 2017. I was also told that the Magistrates' Court awaits my sentence. A justice plan under s.80 has been requested.

21Forensic psychologist, Ian McKinnon described limited moral development, consistent with your disability.  He states as follows:

'In my opinion, Mr Gay does not have the intellectual ability, including the moral development to fully grasp the criminality of his offending.  Mr Gay presented as being immature and childlike in some respects, very impressionable and easily influenced, and he is probably highly vulnerable to exploitation and abuse from other individuals (when questioned about the current offences, Mr Gay could not provide a coherent explanation as to how he had broken the law.  Indeed, Mr Gay expressed his ongoing confusion as to why his behaviour was considered illegal and unacceptable).  Mr Gay's intellectual disability appears to have made a significant contribution to his offending by significantly degrading his ability to reason and make sound judgment, limiting his conceptual abilities, elevating his impulsivity, weakening his powers of consequential thinking, engendering a self-absorbed perspective that lacked appropriate empathy and moral content, and diminishing his awareness of normal adult and community responsibilities and standards of behaviour.'

22I note the consultation with Mr McKinnon was in February 2019.

23He, Mr McKinnon, notes with concern that at the time of consultation, February 2019, you were communicating online with a teenage girl in Queensland. 

24As stated in November 2019, I requested a psychiatric report under s.80 of the Sentencing Act.  Under opinion and recommendations, the report of Forensicare psychiatrist, Dr Vennela Kalluru, includes this:

'During examination, Mr Gay presented with limited understanding of interpersonal boundaries, appropriate sexual relationships and societal norms and deficits in social skills.  In my opinion, this stems from his limited capacity to understand these concepts, due it his intellectual disability, rather than from the presence of deviant sexual attitudes.  Based on the information available, to me, I could not find any evidence of a paraphilia
'Should Mr Gay receive a custodial sentence, I would respectfully recommend to the court that he receive psychological support to learn strategies to improve his interpersonal effectiveness, form appropriate relationship and develop victim empathy.  He appears to have adjusted well to a life in prison, which is often with a structured and supervised environment.  Should Mr Gay receive a community order, I would respectfully recommend to the court that he receives the aforementioned psychological input in the community.  It is likely that he will require ongoing supervision and other external risk management strategies to closely monitor his risk of reoffending.  Additional support to help him form age appropriate peer relations and engage in community based prosocial activities will assist him in developing appropriate relationships due to
Mr Gay's intellectual disability, it may be necessary for any psychological therapy to be delivered in an adapted version to ensure he is able to understand and retain the information given.'

25Psychologist, Mr McKinnon, effectively states high or very considerable risk of reoffending without more intensive and ongoing professional attention.  He states, towards the end of his report:

'Should the court decide to impose a justice plan on Mr Gay, he would probably benefit from an extended period of supervision and individual psychological therapy from an intellectual disability specialist to attempt to address his moral deficits, his understanding of sexual boundaries and the online world and his problematic behaviour.'

26You have not had the benefit of such assistance before. 

27Objectively viewed, the circumstances of these offences are very serious indeed.  Young vulnerable teenagers have been targeted and exploited. Particularly, you sexually penetrated Ms Brennan on more than one occasion when she was 15.  Such offending makes relevant sentencing considerations of moral culpability, deterrence, denunciation and the need for proportionate punishment.  Protection of the community's young is important.  I find that the pending matters in which you have pleaded guilty have relevance, particularly to the level of risk you pose. 

28The usual sentence is one of imprisonment of substantial length. 

29However, here, there are also important moderating factors which should reduce the length of your sentence.  These include the following.

(1)   This is a case in which the principles of the R v Verdins have relevance.  The expert evidence makes clear that your moral culpability is significantly  reduced because of your intellectual disability.  Denunciation and general deterrence, whilst not eradicated, become less important.  Despite psychiatrist Dr Kalluru's comments about your adjustment to prison life, I find that imprisonment must inevitably provide particular difficulties for those with your disability;

(2)  Your persona history has been deprived and, without doubt, damaging to you.

(3)  You have pleaded guilty and cooperated in the proceeding.

(4) I see this as a case in which community protection is better served by concerted attempt at the assistance and rehabilitation recommended in the expert evidence than by prolonged incarceration. 

30I must sentence you in accordance with the standard sentencing scheme set out in s.5A and B in the Sentencing Act. The standard sentence set by s.49B of the Crimes Act for the offence of sexual penetration of a child under 16 is six years and I take that into account as a factor relevant to your sentence.  That standard sentence reflects the objective seriousness of your offending, as I have already described.  However, there are other powerful factors personal to you which speak for a markedly lesser sentence than that.  I have sought to identify such matters, which include your personal history, age, disability and the principles stated in Verdins and like cases. 

31You are also to be sentenced as a serious sexual offender on Charge 3, using a carriage service to transmit indecent communication.  Community protection becomes the principal sentencing purpose on that charge.  As I have said, it is already important.  I do not intend to impose a longer than proportionate sentence to achieve that. 

32There is also the question of some delay.  Particularly, this matter was listed for sentence on 21 February, or certainly that was my intention; unexpected surgery prevented me from sentencing you then.  I take into account likely additional anxiety caused by this delay.  The effects and consequences for those in custody of the COVID-19 virus have also become more apparent in that time.  I bear in mind higher court authority and rulings about this.  The period of your custody should also be moderated because of the present health situation, particularly the greater hardship of that custody caused by the fact and likely consequences within prison of the virus. 

33The further reports requested indicate that you are eligible for assistance under a Disability Client Services justice plan and found suitable for a community corrections order upon release from prison.  The justice plan will provide specialist sex offender treatment by DFATS (Disability Forensic Assessment and Treatment Service).  Further, you will be supported by Disability Client Services to access NDIS assistance.  Supportive accommodation is seen as important, perhaps critical to your rehabilitation.  The justice plan states that a referral has been made to the relevant disability accommodation agency.  That was in February of this year.  The  justice plan and an associated client overview report dated 5 February 2020.  There was further discussion with counsel this morning as to your placement and prospective accommodation. 

34I sentence you as follows.  I am presuming that my structure was not in error, so I will go with it. 

35On Charge 1, the State offence of sexual penetration of a child under 16, you are sentenced to 12 months' imprisonment.

36On Charges 2 and 3, you are sentenced to four months' imprisonment upon each.  Both sentences to commence 10 months after the commencement of the state sentence.  That is - and this is my intention - a total effective sentence of imprisonment of 14 months. 

37I declare under s.18, in respect of that 14 month sentence, pre-sentence detention of 321 days already served.

38On all charges - no, I have left out the summary offence, so I will repeat.  I can do it quickly.  Charge 1, 12 months' imprisonment, Charges 2 and 3, four months' imprisonment.  On both sentences, to commence 10 months after commencement of the State sentence.  On the summary offence of breaching bail, one months' imprisonment.  No cumulation,  therefore concurrent.  That is a total effective sentence of 14 months. 

39Under s.18 of the Sentencing Act, and if it exists, the corresponding section in the Commonwealth legislation - I think it may not, but s.18 applies - I declare, in respect of that 14 months sentence, 321 days of custody, of pre-sentence detention already served. On all charges, you are also convicted, and I impose a community corrections order of two years' duration to commence upon your release from prison, which is in approximately two and half months' time.

40The usual terms apply.  The additional conditions are that you undergo treatment and rehabilitation for mental health, that you undergo treatment and rehabilitation in respect of programs to reduce the specific offending here, that you be under supervision, that here be judicial monitoring - and I will give a date for that later - and that you comply with the justice plan which has been provided and filed in court. 

41Had you not pleaded guilty, I would have imposed a sentence of three years, with a minimum term of two years.  The Crown seeks a forensic sample order, or has that already been provided? 

42MR MOORE:  We are not seeking an order, as I understand it. 

43HIS HONOUR:  All right, thank you.  I am told that we cannot get an extension of this hearing beyond 11 o'clock.  The court is in the extraordinary situation of only being given finite times to do these things, and when it runs out, something like an electronic button is pushed, it all falls over, so I will move quickly, as quickly as I can.  I just wanted to record my view that the situation is ridiculous. 

44Under the Sex Offenders Registration Act, he must be registered, and the reporting period is life, is that right?

45MR MOORE:  Correct, Your Honour.  Correct.

46HIS HONOUR:  The relevant material will be sent to Hopkins for his acceptance and signature.  I need to tell him now, as I am required - and I have about four minutes to do it - what the community corrections order is.  Has it been printed out?  It has not been.  You cannot do it because the WebEx. 

47Well, I do not want to have to, but I direct this to you, Mr Gay.  In about two and a half months' time, you will be released on a community corrections order.  Within two days of that release, you need to go to the relevant community corrections office which, in your case, is presently unknown, so the community corrections people will be in contact with you, and that will be arranged. 

48When you make contact with them, you will then sign this document, that is the order which I will sign today, and I think it is best that I send a copy to the Crown, to the defence and, I think, to community corrections, and I think to Disability Client Services. 

49The usual terms apply, they include these, that you report to that office within two days, that you advise of a change of job or movement interstate within two days, that you do not attend any appointment or the like affected by alcohol of drugs or in possession of any illegal drugs, you must report to and receive visits from community corrections.  In short, you must obey all lawful instructions and directions of community services. 

50The additional conditions are that there be treatment had rehabilitation as directed for mental health, treatment and rehabilitation in respect of specific offending programs; that will be the sex offender program, properly tailored to your needs that I spoke of during my sentence, that there be supervision, that there be a judicial monitoring hearing.  I would like to make the first date of that very soon after your release so I can be told about your accommodation circumstances. 

51Am I right, he will be released in about two and a half months' time?  It has been disconnected.  Well, can you - we will just email it.  Can you email it to the relevant people?  If it is - we have been knocked off even early, somebody just cannot wait to press the button. 

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