Director of Public Prosecutions v Gentry (a pseudonym)
[2019] VCC 2160
•13 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YOLANDA GENTRY (A PSEUDONYM) |
---
JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 July 2019, 25 October 2019 | |
DATE OF SENTENCE: | 13 December 2019 | |
CASE MAY BE CITED AS: | DPP v Gentry (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2160 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. O’Doherty (For Plea) Mr M. Fisher (For Sentence) | Office of Public Prosecutions |
| For the Accused | Ms T. Theocharous | Kurnai Legal |
HIS HONOUR:
1 Yolanda Gentry[1], you have pleaded guilty to one representative charge of sexual penetration of a child under 16 years, contrary to s49B(1)(a)(ii) of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 2000. The maximum penalty for this offence is 15 years’ imprisonment.
[1] This is a pseudonym name.
Circumstances of offending
2 The circumstances of your offending were set out in the amended prosecution plea summary dated 24 July 2019, which was read out by the prosecutor at your plea hearing on 24 July 2019, and tendered as Exhibit A. I will confine my remarks here to a summary.
3 The offending for which you now fall to be sentenced occurred during a period of approximately 5½ months between November 2017 and April 2018. You were then aged between 23 and 24 years of age, and your victim, David Young[2], was aged between 14 and 15 years. The age gap between you, therefore, is nine years.
[2] This is a pseudonym name.
4 You first met David when he was about nine years of age. You were a friend of his best friend’s mother. You would often be present when David visited his friend.
5 You developed a friendship with David in 2016, when you were aged 22 and he was just thirteen. In July of that year, his father was ill with liver cirrhosis and ultimately died in August of 2016. It was during this difficult period of David’s life that you developed a friendship with him.
6 That friendship first developed at a birthday party for the mother of David’s best friend in mid to late 2016, where you socialised and drank with him. Your friendship started from there, and you would meet on a weekly basis, becoming very close friends during this time. Given the difficulties in his life, David found comfort in his friendship with you.
7 Between November 2016 and February 2017, you lived at the home of David and his mother, Cierra Young[3], in Traralgon. You moved into that property with your then three year old daughter, Maiya[4], in November 2016 until February of the following year when you moved out with your daughter. During the period when you resided with David and his family, you slept in the same bed as David. His mother and sister expressed their concern about your growing friendship, but you claimed that you and David got along really well and denied any sexual relationship with him.
[3] This is a pseudonym name.
[4] This is a pseudonym name.
8 According to David, the first time you and he had sex was at his house in Traralgon, after a party sometime in October/November 2016. You were then aged 22 and David was thirteen. It occurred in the context of a birthday party where you and David had consumed alcohol. After party goers left, David grabbed you and told you to come to his room. You followed and he then grabbed you and put you on the bed. He does not recall if you kissed, but he placed his penis into your vagina and ejaculated, before you both passed out.
9 Sometime between December 2016 and 11 January 2017, you again had penile/vaginal sex with David. It was on a camping trip to Walhalla a few months after the first occasion.
10 In January 2017, police had received information that you and David were in a sexual relationship. Police executed a search warrant at your property in Traralgon on 11 January 2017. At this time, both you and David denied having a sexual relationship.
11 After the execution of the police search warrant in January 2017, you stopped seeing David for a period. However, in the following months your friendship recommenced and according to David you started seeing each other again at night “on the down low”.
12 You moved into your property in Morwell on 15 August 2017, after which time sexual activity resumed between you and David. After you moved to the Morwell property, David stayed at your property four to five nights a week.
13
The details provided so far provide the context or background for the sexual offending for which you now fall to be sentenced. Between
15 November 2017 and 30 April 2018, you and David had penile/vaginal sex between 10 to 25 times at the property in Morwell. According to David, the first time you had sex within this period he was not wearing a condom as you were on contraception. He ejaculated into his hand. According to David, you would have sex maybe once or twice every two to three weeks. David turned 15 on 21 January 2018, midway through this offending period.
14 Sexual activity between you and David ceased in April 2018, after an argument between you and David over comments made by his mother to you.
15 Later in 2018, Ava Moreno[5] had loaned you her mobile phone. You returned the phone to Ms Moreno on 24 August 2018, at which time Ms Moreno noticed text messages between you and David about your relationship. Ms Moreno contacted police on that date and handed her phone to the police, who downloaded the content on the phone, revealing text messages between you and David which referred to a sexual relationship between you.
[5] This is a pseudonym name.
16 You were arrested by police on 24 September 2018, when the police attended at your property and executed a search warrant. You were conveyed to the Morwell Police Station for an interview. You participated in an expansive interview with the police, many of the answers to police questions were set out in some detail in the amended prosecution plea summary at paragraph 25. You made extensive admissions to your sexual activities with David, and of your relationship, and your feelings towards David.
17 Soon after you were charged by police, and you have been on bail up to the date of sentencing.
18 Having first appeared in Court at a filing hearing on 27 September 2018, the matter resolved to a plea of guilty after negotiations, on 6 February 2019.
19 At your plea hearing on 24 July 2019, I was advised that your victim, David, has been advised of his right to make a Victim Impact Statement, but that no statement would be forthcoming.
Gravity of your offending, and your level of culpability for it
20 The gravity of the crime of sexual penetration of a child under 16 is reflected in the statutory maximum of 15 years’ imprisonment. Clearly, sexual penetration of children under the age of 16 must be viewed as a crime of great significance, due to the catastrophic effects that such conduct can have on young individuals such as your victim, who have not yet attained physical or emotional maturity. Indeed, the community expects that children will be protected from such abhorrent behaviour.
21 In my view, your conduct represents a serious example of this offence, due to a number of factors. The charge to which you have pleaded guilty and which you now fall to be sentenced for is a representative charge, representing between 10 and 25 episodes of penile/vaginal sex. As the authorities make clear, a representative charge may operate to deny an offender any leniency that might otherwise result from the offence being an isolated incident. It also puts the offending into context. The fact that a charge is representative does not stand as an aggravating circumstance. All other things being equal, a representative charge will result in a heavier sentence than a charge relating to an isolated incident. As was made clear in the amended prosecution plea summary, your sexual interactions with your victim commenced prior to 15 November 2017, the commencement date of the offending covered by the charge on the indictment. Whilst you may only be sentenced in relation to the charged sexual conduct, the uncharged sexual activity dating back to 2016 very much contextualises the charged activity for which you fall to be sentenced. In relation to that earlier activity, when questioned by your victim’s mother, you denied any sexual activity. Further, on 11 January 2017 when the police executed a warrant at your property, you denied having a sexual relationship to police. After a break of some months, you resumed your sexual contact with your victim, leading to the sexual offending which commenced on 15 November 2017, for which you now fall to be sentenced. In those circumstances, due to the police intervention in January 2017, you must surely have appreciated the gravity of your sexual conduct in relation to your victim, and the fact that you then commenced to engage in sexual activity with your victim between November 2017 and April 2018 brings into sharp focus the gravity of your wrongdoing, and in my view increases your moral culpability for the charged offending.
22 There was a significant age disparity between you and your victim, of some nine years. Furthermore, your victim was well and truly under the age of legal consent, being 16 years of age. He was 14 years of age during the charged offending, and clearly a child.
23 The genesis of your sexual relationship with your victim, which ultimately led to the sexual offending covered by the charge on the indictment, was your befriending of your victim in 2016, when his father was ill with liver cirrhosis and died in August 2016. It was during this difficult period of his life, at the age of 13, that you befriended your victim, and he found comfort in you. In addition to his youth, he was clearly a particularly vulnerable young person when the dynamics between you which ultimately developed into a sexual relationship commenced.
24 Your first sexual encounter with your victim took place at the home where he lived with his mother in Traralgon. Whilst, as I have stated, you are not to be sentenced for the prior sexual activity which predates the charged activity on the indictment, your behaviour in breaching the trust of your victim’s mother in this manner highlights the brazen and determined manner in which you embarked on your sexual relationship with your victim, and very much contextualises your later sexual offending with him.
25 There are references in some of the psychological material tendered on your behalf during the plea hearing to sexual advances being made by your victim towards you initially. Consent is irrelevant in relation to the charge to which you have pleaded guilty. As I have stated, children under the age of 16 deserve the protection of the law, even if that entails protection from themselves. Accordingly I do not regard any willingness on the part of your victim to engage in any sexual activity with you to in any way mitigate the gravity of your offending.
Background
26 You are currently 25 years of age. You come before the Court with no criminal history.
27 You are the younger of two children born to your parents, Heather Carn[6] and Ronald Carter[7]. Your older brother, Lawrence[8], is aged thirty.
[6] This is a pseudonym name.
[7] This is a pseudonym name.
[8] This is a pseudonym name.
28 You were born in Melbourne and resided with your parents until they separated when you were aged nine months, at which time you moved to Traralgon to live with your father and brother. Your father entered into another relationship when you were four years of age, and you then resided with your father, brother, stepmother and two step siblings, Sophie[9] now aged 21, and Ben[10] now aged 18.
[9] This is a pseudonym name.
[10] This is a pseudonym name.
29 You have reported enjoying a good relationship with your father, stepmother and siblings. I note that you have been supported in Court on all occasions by your father, Ronald, your stepmother, Jocelyn[11], and your brother.
[11] This is a pseudonym name.
30 You are essentially, as I understand it, estranged from your mother who battles alcohol addiction. You have had extremely limited contact with her for many years.
31 You completed your primary school education at Stockdale Primary School in Traralgon, and your secondary education at Traralgon Secondary College. Since leaving school, you have apparently never been in paid employment, however, you have worked with horses in an unpaid capacity.
32 After leaving school, you moved to Queensland for four months, after meeting someone on the internet. When that relationship did not work out, you returned to the Gippsland area and had an 18 month relationship with a man who was a year older than you. You were then aged nineteen. After the end of that relationship, you commenced a relationship with Rusty Miller[12]. That relationship lasted for some 18 months, which resulted in the birth of your daughter, Maiya, now aged four. You have reported that Maiya’s father has issues in relation to methylamphetamine addiction, and has intermittent weekend access with Maiya.
[12] This is a pseudonym name.
33 After your relationship with Maiya’s father ended, you engaged in a number of other relatively short term relationships, before your interactions with your victim commenced.
34 The issue of your psychological functioning was raised at your initial plea hearing before me on 24 July 2019. To that end, a number of psychological assessments have been undertaken on your behalf.
35 Clinical psychologist, Carla Lechner, provided a report dated 18 April 2019, tendered on your plea hearing and marked Exhibit 2. According to Ms Lechner, you were suffering from mostly reactive depression of sufficient severity to warrant diagnosis of adjustment disorder with mixed depression and anxiety. You also exhibited some features of a diagnosis of borderline personality disorder, struggling with relationships, emotional regulation, feelings of abandonment and emptiness, often looking for another to fulfil those gaps in your life. According to Ms Lechner, your need for emotional dependency is high, and your strong desire for happiness and feeling safe overrode your judgment and decision making at times. Ms Lechner described your symptoms as hebephilic rather than paedophilic, no doubt given the age of your victim at the time of the offending. Furthermore, Ms Lechner explaining that:
“It is the emotional connection that seems to bind her to the complainant rather than a sexual attraction per se.”[13]
[13]Page 7
36 Whilst according to Ms Lechner you acknowledged your role in the offending, your references to being in love with your victim, that he was mature and you were very immature and you met in the middle, that you were always meant to find him but the timing was wrong, and that you continued your contact with your victim even after police intervention because you did not want to give up on the happiness that you had found, raises issues in my view in relation to your level of insight as to your wrongdoing. In terms of your risk of reoffending, notwithstanding the absence of any assessment tools to calculate the risk of sexual offending in females, Ms Lechner opines that you present as a low risk of sexual reoffending, but that given that you still harbour feelings for the victim, you may still try to make contact with him when he is of age. Ms Lechner recommends psychological intervention to improve your level of insight and other psychological difficulties as she has described them.
37 Ms Jane Lofthouse completed a neurological assessment on you, and set out her findings in a report dated 25 September 2019, tendered at your plea hearing and marked Exhibit 5. After conducting various psychometric testing, Ms Lofthouse found that you were somewhat depressed and had relative weaknesses in your intellectual profile. Overall, according to Ms Lofthouse, there is no evidence that you have a developmental disorder such as an intellectual disability. The testing undertaken by Ms Lofthouse was not consistent with you having a significant brain injury. According to Ms Lofthouse:
“Ms Gentry did however show marked impairment in her general knowledge and memory with mild impairment in her verbal abstract reasoning, expressing the meaning of common words and fully understanding wider rules of the community. She was also slow to learn new material. These deficits are likely to be long standing and not as the result of a brain injury.”[14]
[14]Page 12
38 Ms Lofthouse concludes that in her opinion:
“Ms Gentry's intellectual impairment was not a contributing factor in her criminal offending but rather her psychological issues were a major contributing factor to the criminal offending that gave rise to her current charges.”[15]
[15]Page 13
39 Given the content of the psychological reports tendered on your behalf, I am unable to make any allowance in terms of your moral culpability, or the impact of general deterrence, by virtue of any mental impairment in your case. At your further plea hearing on 25 October 2019, your counsel conceded that the material did not enliven these Verdins[16] principles, by virtue of any mental impairment on your part.
[16]Verdins; Buckley; Vo(2007) 16 VR 269
40 I was also provided with a body of documentary material in relation to your recent progress in the community. Two letters were provided from Quantum Support Services, dated 23 July 2019 and 22 October 2019. Quantum Support Services is a transitional support program that assists the homeless whilst providing linkage to other appropriate specialist services. You had first sought the assistance of Quantum Support Services in August 2018, to obtain housing for yourself and your daughter, Maiya. You indicated that your homelessness was partly due to your separation from your most recent ex‑partner, Maiya’s father, in the context of family violence and his substance abuse. According the case manager, Shane Collier, with the assistance of Quantum Support Services you have obtained long term public housing in the Churchill area, and have accessed specialist counselling with psychologist, Elizabeth Tabary-Collins.
41 A report from Ms Tabary‑Collins, psychologist, dated 24 October 2019, tendered at your plea hearing and marked Exhibit 7, was provided to the Court. It would seem from that report that you have been engaging with Ms Tabary‑Collins since the middle of July 2019, for counselling in relation to various issues in your life. According to Ms Tabary‑Collins, you have seen her some five times. You have gained meaningful insight into the seriousness and unlawfulness of your offending, agreeing that your behaviour had been unacceptable and unlawful. You also presented to Ms Tabary‑Collins as being overwhelmingly concerned about the effects of your behaviour on your relationship with your daughter.
42 A report from psychologist, Carol Wilson, dated 21 October 2019 was provided at your plea hearing, tendered and marked Exhibit 6. According to Ms Wilson’s report, you were referred by Quantum Support Services for assessment along with your daughter, Maiya, and attended four sessions between 20 August 2019 and 17 October 2019. According to Ms Wilson, you had been candid with Ms Wilson, and had expressed remorse and determination for accountability in relation to your offending. Ms Wilson, along with the other psychologists to whom I have referred, expressed the opinion that you represent a low risk of reoffending in the circumstances.
43 At your further plea hearing on 25 October 2019, in terms of your recent progress in the community, it was clear that save for the attendances upon counsellors, the details of which I have just described, you were anxiously awaiting the outcome of your sentencing hearing. You have maintained stable accommodation, where you live with your young daughter, who attends kindergarten 3 days a week. Your father and stepmother, together with your brother, live in the same region as you. I was informed that your elderly uncle, who suffers from his own mental health issues, resides with your father and stepmother, as he cannot live independently. Your stepmother is essentially his carer. Your father works as an arborist from 6.00am to 4.30pm, and your stepmother suffers from depression and anxiety.
44 Subsequent to the further plea hearing on 25 October 2019, I have received further documentary material in relation to the health issues relating to your stepmother, and the threat to your housing in the event of your incarceration. Whilst those documents date from October and early November, concerningly they were only filed with the Court yesterday. Nevertheless, I have taken them into consideration in the formulation of an appropriate sentence. According to the reports of Dr Ham and Dr Rajapakse, your stepmother suffers from various physical and psychological ailments, which limit her daily functioning. She also cares for your Uncle, who has schizophrenia. According to Dr Ham, your stepmother is not capable of taking on the care of a young child. According to the latest report from Shane Collier from Quantum Support Services dated 1/11/19, noting that Mr Collier is in court today for the sentencing hearing, incarceration would place your housing at risk, though I note that “DHHS public housing do provide an option for tenants who experience temporary absences to sustain their tenancies if the absences do not exceed a 6 month period.”
45 Clearly, a sentence of imprisonment will likely have adverse consequences for both you, in terms of the threat to your housing, and your family, in terms of the burden of caring for your daughter. Whilst the impact on your stepmother is likely to be arduous, I am aware that you do have other family supports, in the form at least of your father, brother and siblings in addition to services presumably provided by the State.
Sentencing factors
46 In formulating an appropriate sentence in your case, I have taken into consideration the various sentencing factors set out in s5(2) of the Sentencing Act 1991, including the nature and gravity of your offending and your level of culpability for it. I refer to my earlier remarks in these reasons in that regard.
47 I have also taken into account the maximum penalty for this offence being 15 years.
48 At the age of 25, you come before the court with an absence of prior criminal history. I am satisfied, in all the circumstances, that your offending was therefore out of character.
49 This matter resolved to a plea of guilty, after negotiations at a committal mention on 7 February 2019, some months after being charged. I am satisfied, in all the circumstances, that your plea of guilty was entered early in the proceedings, and warrants a sentencing discount due to the utilitarian value of your plea of guilty, having spared the victim cross-examination.
50 Whilst the matter is not straightforward, I am prepared to accept that your plea of guilty is indicative of a degree of remorse on your part. You indicated to psychologist, Carla Lechner, that since being charged you have become aware of the impact of your offending on your victim, stating “I’ve potentially damaged him for the rest of his life”.[17]
[17]Page 6
51 However, clearly, according to Ms Lechner, there were, as at least April 2019, some insight issues on your part. You referred to having been in love with your victim, and still being in love with your victim, notwithstanding the significant age disparity and his youth.
52 Ms Lechner concludes:
“In respect of her offending, Ms Gentry is able to acknowledge, at least at a cognitive level, that her actions were wrong and potentially harmful to the young lad. Emotionally, she reports that she still has strong feelings for him. Although not stated overtly, she may harbour fantasies of reconnecting with him when he reaches adulthood.
Ms Gentry has limited insight regarding the impact of her behaviour on his development, rationalising that he is ‘mature’ and she is ‘immature’.”[18]
[18]Page 8
53 Likewise, whilst psychologist, Carol Wilson, in her report dated
21 October 2019, makes reference to your expressed remorse and determination for accountability, you reported to Ms Wilson, in terms of relevant factors and incidents that contributed to the offending, that the relationship (which I acknowledge may have been a reference to friendship) was initially condoned by the victim’s mother, and that the victim openly spoke about his sexual history. These comments are somewhat troubling in relation to your level of insight into your offending.
54 Further, according to Ms Tabary-Collins, psychologist, in her report dated
15 July 2019, whilst you completely agreed that your behaviour had been unacceptable and unlawful:
“At the same time, she mourned the loss of a dear friendship with the young man she had known for a few years and felt she had helped in his difficult times. She grieved for a relationship she felt – but did not articulate thus – had grown organically from simple affection and concern into something closer to adult love between consenting partners.”
55 According to neuropsychologist, Jane Lofthouse, in her report dated
25 September 2019,[19] you were aware that your behaviour that led to the current charges was inappropriate and you expressed remorse and accepted responsibility for your criminal offending. As I have stated, notwithstanding some queries in relation to your level of insight, I accept that you are remorseful for your offending, and a further sentencing discount therefore applies.
[19]Page 13
56 I regard your prospects of rehabilitation as being at least reasonable, and if you are able to continue with appropriate psychological counselling, your prospects indeed may be good. You come before the court with an absence of criminal history. You maintain the love and support of your family. You have demonstrated the ability to embark upon what has no doubt been a confronting process of psychological intervention.
57 Whilst, according to Ms Lechner, there are no assessment tools to calculate the risk of sexual re-offending in females, you do not, according to
Ms Lechner, appear to meet the criteria of sexual deviance or psychopathy in that your attraction to your victim was not based on sexual attraction, rather emotional attraction and a belief that you loved each other. According to
Ms Lechner, you present as a low risk of sexual re-offending, but you would benefit from a range of psychological treatments. Likewise, according to psychologist, Carol Wilson, you are unlikely to re-offend. Ms Tabary-Collins opines that, given your history, you are not at risk of re-offending.
58 In that regard I agree with the prosecution submissions on 25 October 2019, that there would appear to be no basis for Ms Tabary-Collins expressing such a strident view. According to clinical psychologist, Jane Lofthouse, if you are able to engage in long-term counselling, your risk of re-offending will be greatly reduced.
59 You presented to Ms Lechner with symptoms consistent with a diagnosis of clinical depression and severe anxiety. Your level of depression and anxiety was of sufficient severity to warrant a diagnosis of adjustment disorder with mixed depression and anxiety, which was attributed mainly to your legal predicament, your fear of being incarcerated, and the concerns about the care of your daughter. According to Ms Lechner,[20] “An immediate term of imprisonment is likely to lead to a further decline in her mood state, especially in light of the concerns that she has for her daughter’s care”.
[20]Page 8
60 Psychologist, Ms Tabary-Collins, who assessed you on 15 July 2019, found you to be suffering from extreme anxiety and severe depression. According to neuropsychologist, Jane Lofthouse:[21]
“It is my opinion that psychological factors will make it more difficult for Ms Gentry to complete a prison sentence in comparison to persons who do not suffer from these issues”.
[21]Page 13
61 Given the psychological material relied upon, I am satisfied that your psychological issues will mean that you are likely to find a term of imprisonment more burdensome than a prisoner in normal health, enlivening the fifth Verdin’s[22] principle, mitigating your sentence.
[22]Verdins; Buckley; Vo(2007) 16 VR 269
62 Whilst hardship to a third party as a consequence of imprisonment of an offender is not normally a mitigating circumstance, a sentence can be mitigating because of third party hardship where the case reveals exceptional circumstances. The circumstances must be such that they rise above the general and sometimes tragic hardship commonly suffered by the families of imprisoned offenders.
63 Your counsel submitted that exceptional circumstances existed in your case, by virtue of the impact of a term of imprisonment on your young daughter, Maiya, who currently resides with you as her sole carer. In that regard, your counsel relied upon the two letters from Quantum Support Services, the report from Elizabeth Tabary-Collins, psychologist, and the report from psychologist, Carol Wilson. According to Shane Collier, Case Manager from Quantum Support Services, “Any extended period of separation between mother and daughter would be extremely detrimental to daughter Maiya’s emotional and mental wellbeing”. According to Elizabeth Tabary-Collins:[23]
“I think that the impact on Maiya of her mother being incarcerated would be devastating. They have a particularly strong bond in the actual absence of her father in Maiya’s life. Based on the perceived abandonment she would be experiencing, I believe there would be a reasonable risk of Maiya developing borderline tendencies in later life.”
[23]Page 4
64 Your counsel, however, conceded that Ms Tabary-Collins had not had direct contact with Maiya for the purposes of expressing this opinion.
65 In contrast, psychologist, Carol Wilson, assessed both you and your daughter in four sessions between 20 August 2019 and 17 October 2019. According to Ms Wilson, the parent/child bond appeared as a healthy attachment:
“Maiya displayed appropriate nervousness to being asked to be without her mother in session and became increasingly nervous as time passed. The level of nervousness is suggestive that Maiya is at risk of feelings of abandonment if she is separated from her mother.”[24]
[24]Page 2
66 In considering the issue of third party hardship, I have considered the relevant authorities, including Markovic [2010] VSCA 105, and the decision of DPP v Gerrard [2011] VSCA 200, a decision relied upon by your counsel. In that case, the profound deafness of the offender’s wife, her consequent dependence on the offender, and the autism suffered by the offender’s son, amounted to exceptional family hardship. I regard the circumstances in Gerrard[25] as being significantly more extreme than your circumstances.
[25]Gerrard [2011] VSCA 200
67 Whilst in submissions before me on 24 July 2019, it was indicated that presumably Maiya could reside with her grandparents, with whom she has a close bond, should you be incarcerated. In further submissions on
25 October 2019, your counsel submitted that your father worked long hours as an arborist and would struggle to assist in getting Maiya to kindergarten three days per week and otherwise assisting in the care of Maiya. Further, your counsel submitted that the presence of an elderly uncle with a mental illness in your father’s home, coupled with your step-mother’s own mental health issues, meant that having Maiya reside with your parents would cause significant hardship to the family unit, and Maiya in particular, such that exceptional circumstances existed. As I have stated earlier, I have now been provided with some documentary material in relation to the consequences of any term of imprisonment on your stepmother, and the threat to your housing. I have taken those materials into consideration in sentencing.
68 Having given this particular issue anxious consideration, I am of the view that exceptional circumstances do not exist in this case, which would otherwise warrant mitigation of any sentence through third party hardship. It is a sad but not uncommon reality that families of imprisoned offenders, including children, endure sometimes tragic hardship.
69 Whilst I have little doubt that a term of imprisonment will impact negatively on your family, and particularly your young daughter, in my view, the circumstances do not rise to the necessary level of exceptional circumstances.
70 However, I have taken into consideration, as an indirect response to third party hardship, your inevitable anxiety and appreciation of the difficulties to your daughter and family, which will no doubt increase the burden of your imprisonment. I have mitigated your sentence to some degree as part of the instinctive synthesis undertaken in formulating an appropriate sentence in your case.
71 In formulating an appropriate sentence in your case, I have also taken into consideration current sentencing practices as one of the factors relevant to sentencing. The prosecution provided a number of previous decisions on
24 July 2019, and I have considered those cases. The decisions provided reflect a great deal of disparity in terms of the particular circumstances of the offending and the offender. Comparable cases can do no more than provide a general guide, impression or background.[26]
[26]Russell v The Queen [2011] VSCA 147 at [4]
Sentencing principles
72 Given the nature of the offending for which you now fall to be sentenced, general deterrence is a significant sentencing principle. Other like-minded offenders must be deterred from committing such serious sexual offences against children. Whilst you do not have a criminal history, your level of insight into your wrongdoing, which I regard as incomplete, calls into play the application of specific deterrence to a degree. That is, any penalty I impose must deter you from further offending of this nature. Any penalty I impose must reflect the court’s denunciation on behalf of the community of sexual offending against children. Any penalty must also reflect the need for your ongoing rehabilitation and, in all the circumstances, the penalty must reflect the principle of just punishment.
Sentencing submissions
73 The prosecution in this case submitted that, in all the circumstances, a Community Correction Order on its own would not satisfy the relevant sentencing factors and principles. It was, however, not submitted by the prosecution that a combined penalty of imprisonment, coupled with a Community Correction Order, bearing in mind the 12 month maximum for a term of imprisonment coupled with a Community Correction Order, would be outside the range. Indeed, on 25 October 2019, having received all of the relevant plea material available at that stage, the prosecution indicated that a combined term of imprisonment with a Community Correction Order would be within the range in this case. I was informed this morning by Mr Fisher who appears on behalf of the Director that those sentencing instructions have not changed in light of the recently provided plea material.
74 Your counsel submitted that, in all the circumstances, a Community Correction Order on its own would be an appropriate penalty.
75 An extended Pre-Sentence Assessment Outcome Report dated
7 August 2019, undertaken by Morwell Community Correctional Services, indicated that you were suitable for a Community Correction Order, with various conditions recommended, including unpaid community work, supervision, treatment and rehabilitation in relation to drugs, alcohol and mental health, offending behaviour programs, and a non-association condition in relation to your victim, David Young.
76 Taking into consideration all of the relevant factors to which I have referred in these reasons, I have determined that the gravity of your conduct and the need for any penalty to reflect the sentencing principles of denunciation, general deterrence and just punishment, means that a term of imprisonment coupled with a Community Correction Order is the only appropriate disposition in your case.
77 Pursuant to the principles articulated in Boulton’s[27] case, I am satisfied that a Community Correction Order, following a term of imprisonment, is an appropriate disposition in your case. As was made clear in Boulton[28], Community Correction Orders can be available for serious offending, such as your offending. Community Correction Orders in and of themselves are punitive dispositions, requiring significant restrictions on an offender’s freedom of movement, and imposing considerable obligations upon the offender. In your case, I regard the imposition of a Community Correction Order following a term of imprisonment, with appropriately crafted conditions, to be both punitive and rehabilitative. Whilst, as I have stated, a term of imprisonment before the commencement of a Community Corrections order is warranted, I have reduced the length of that term of imprisonment due to the constellation of mitigatory factors in this case, and in light of my view that you should be reunited in the community with your daughter, hopefully in your existing housing, as soon as is reasonably possible. Ms Gentry would you please stand.
[27]Boulton v The Queen [2014] VSCA 342
[28]Ibid
Sentence
78 In relation to the charge of sexual penetration of a child under the age of 16, you are convicted and sentenced to a term of imprisonment of six months. Upon the completion of the sentence, I order that you undergo and complete a Community Correction Order. The length of the order is 18 months. For the duration of that order, you will be subject to the following conditions, in addition to the mandatory conditions:
(i) you must be under the supervision of a community correction officer for the period of 18 months;
(ii) you must undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager;
(iii) you must undergo assessment and treatment, including testing for alcohol abuse or dependency as directed by the regional manager;
(iv) you must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager;
(v) you must participate in programs and or courses that address factors relating to the offending as directed by the regional manager;
(vi) I direct that a further condition of the community correction order be that you not associate with the victim in this matter, David Young.
79 In addition to those conditions that I have imposed, you will also be subject to the mandatory terms that apply to all community correction orders. They are that you must not commit another offence for which you could be imprisoned during the time that the order is in force. You must comply with any obligation or requirement prescribed by the relevant regulations. You must report to and receive visits from the Secretary or a delegate. You must report to a community corrections centre within two clear working days of the order commencing. You must let a community correction officer know within two clear workings days of your change of address or job. You must not leave Victoria without first getting permission to do so and you must obey all lawful instructions and directions of the Secretary or a delegate.
80 Ms Gentry before I impose the community correction order on you which will commence six months from today's date - well, I can only do so if you consent to the making of that order. And in order for me to take into consideration your consent, I need to be satisfied that it is informed consent, in other words you understand what is involved in the imposition of a community correction order. So, all of those conditions that I have just set out will apply for the duration of the order.
81 In addition to that, if you breach the community correction order through non-compliance or through reoffending, you can be brought back to court for breach proceedings. Punishment for breach can include a term of imprisonment but perhaps more importantly in this case, it can reopen the sentencing process and you would fall to be resentenced in relation to this matter. Do you understand that?
82 OFFENDER: (Indistinct words).
83 HIS HONOUR: Understanding all of that, do you agree to comply with the terms of the community correction order that I have explained to you.
84 OFFENDER: I agree, Your Honour.
85 HIS HONOUR: Yes, all right, I will ask my associate now to - in fact, I might just press on with the remainder of my sentencing remarks and then I will have my associate approach Ms Gentry with a number of documents.
86 Pursuant to s6AAA of the Sentencing Act, I declare that but for your plea of guilty, the sentence I would have imposed was a sentence of two years' imprisonment with a non-parole period of 15 months.
87 Pursuant to the relevant provisions of the Sex Offenders Registration Act 2004, as you have been found guilty of one Class 1 offence, which is a registrable offence, you are subject to mandatory registration and reporting requirements for a period of 15 years. Ms Theocharous, will you explain to Ms Gentry the rigours involved in the reporting requirements. They are extensive. Ms Gentry will receive a document setting them out but would you undertake to make sure she understands the nature of the reporting obligations.
88 Finally, I will make the forensic sample order sought by the prosecution, on the basis that the order is not opposed, and in light of the seriousness of the circumstances of the offence, and that the making of the order is in the public interest. Mr Lavery, could you hand me a copy of that order please.
89 Pardon me for one moment. Ms Gentry, I need to indicate to you that the taking of the sample will be, as I understand it, a saliva sample that will be taken by - is it a saliva sample, Mr Fisher, is that right?
90 MR FISHER: Yes, Your Honour.
91 HIS HONOUR: Be taken by a member of Victoria Police. I need to inform you that if at the time of the taking of the sample you do not consent to the taking of the sample, the sample taken will be a blood sample and Victoria Police can use reasonable force for the purposes of taking that sample, do you understand that?
92 OFFENDER: Yes, Your Honour.
93 HIS HONOUR: Thank you. The community correction order documentation and the registration documentation will now make its way back to you,
Ms Gentry. You will need to sign, where indicated, in terms of the community correction order. And Ms Theocharous, I will ask you to accompany my associate down. For the sake of clarity, the assessment report indicated a recommendation regarding community work. I have determined not to impose community work on this order given the term of imprisonment that will come first.
94 MR FISHER: If Your Honour pleases.
95 MS THEOCHAROUS: As Your Honour pleases.
96 HIS HONOUR: Yes. Mr Fisher, have I covered everything in terms of orders I need to make?
97 MR FISHER: Yes, you have, Your Honour, thanks.
98 HIS HONOUR: Thanks. Any queries, Ms Theocharous in relation to the order?
99 MS THEOCHAROUS: No, Your Honour.
100 HIS HONOUR: Yes. Your client understands she has a term of imprisonment of six months followed by an 18 month community correction order.
101 MS THEOCHAROUS: Yes. Thank you.
102 HIS HONOUR: Yes, thank you. Yes, can Ms Gentry please be removed, thank you.
- - -
0
4
0