Director of Public Prosecutions v Girton (a pseudonym)

[2016] VCC 1535

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01050

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL GIRTON (a pseudonym)

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JUDGE:	HER HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	19 September 2016
DATE OF SENTENCE:	19 September 2016
CASE MAY BE CITED AS:	DPP v Girton (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 1535

REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Sexual Penetration of child under 16, sexual assault
Legislation Cited:
Cases Cited:
Sentence: Community Corrections Order for 30 months under supervision with 80 hours unpaid community work, Registered Sex Offender for 15 years, Forensic sample order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Warda	Office of Public Prosecutions
For the Accused	Ms M. Casey	Condello Lawyers

Pages 1 - 11

 

 

HER HONOUR: 

1At the outset I advise that I am using a pseudonym for the names of the offender and the complainant in these reasons.  I remind those listening to these remarks that the law prohibits the publication of any details likely to lead to the identification of a sexual offences complainant[1]. 

[1] Section 4 Judicial Proceedings Reports Act

2Michael Girton[2], on 30 August I indicated that if you pleaded guilty I would not be likely to impose a sentence of imprisonment that commences immediately.  Through your counsel you then indicated that you would plead guilty to an appropriate indictment.  An indictment was filed today containing one charge of sexual penetration of a child under 16 as a course of conduct charge and you have now pleaded guilty to that charge.  That offence has a maximum sentence of 10 years' imprisonment.

[2] A pseudonym

3I base my sentencing remarks on the Prosecution Opening which was filed on 30 August and confirmed today with amendments.[3] In summary, you engaged in a course of conduct of sexually assaulting your younger cousin over a 3 year period by penetrating his mouth with your penis, usually until you ejaculated.  Your cousin, Andrew Tracy[4], is four years younger than you and your mothers are sisters. The families spent a lot of time together and, whichever family’s house you were at, you arranged to have Andrew go upstairs to a bedroom where the sexual conduct took place.  Towards the end of the period of offending, the sexual conduct happened only at your house, including the last occasion which was the last day of the school year for Andrew. You also engaged in conduct away from the home and two specific occasions are referred to in the prosecution opening: in a disabled toilet at McDonald's and in a disabled toilet at a library.

[3] Exhibit A

[4] A pseudonym

4I sentence you on the basis that there was a course of conduct of this type of sexual activity engaged in on average once a week over three years, but not every week, and that there were the three specific occasions as I have just outlined[5]. 

[5] Section 5(2)(f) Sentencing Act

5While any offending against a child victim is serious, there are a number of features which make your offending more serious.  These features are that the conduct took place over three years; there is four years’ difference in age between you and Andrew; there is a breach of trust for both Andrew and his family in that you were cousins and that you were older than him; you persisted in offending even when Andrew tried to indicate that he did not want to participate in the sexual activity, and I am satisfied that there was a degree of manipulation and coercion by you in convincing him to go ahead on those occasions. 

6On the other hand, the sexual conduct described in this charge began when you yourself were still a child, aged 16.  I accept that your offending is objectively not as serious as it could be because of the potential for the sexual activity to have begun as sexual experimentation by you which started with kissing when you were aged between 10 or 11 and Andrew 4 years younger than that. This seems to have become habitual conduct for you, and it seems from Andrew's statement to police, possibly also for him.  However, at age 18 you became the adult and from then on until you stopped the offending at age 19, you had the responsibility not to commit a sexual act against a child.

7I did not receive a statement from Andrew describing the impact of your crimes on him.  However, given the close family connection, it would not be surprising if the impact on him has been considerable.  Further, when it comes to children, it is presumed that they suffer harm from a sexual offence being committed against them, harm which can be long term and serious, and both physical and psychological. While I have no information as to the level of harm suffered by Andrew, neither do I have any material rebutting the presumption that he was harmed.

8Considering all of these factors, I am of the view that your offending is at the lower end of the range of seriousness for this otherwise serious offence. 

9Balanced against all of this, there are some factors I must take into account in your favour. 

10The first of these is the fact that you have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. Because of your plea, the community has been spared the time and cost of the trial, and Andrew and other family members have been spared the ordeal of giving evidence in your trial. I can tell you that the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.

11I also take into account in your favour that you stated your intention to plead guilty at the first available opportunity after the sentence indication was given by me.  Therefore I accept that your plea of guilty indicates remorse for your actions. Further, after Andrew told his sister about the offending and she reported it to the police and while at the police station spoke to you in a recorded telephone conversation, you freely admitted to her what you had been doing to Andrew and asked her to apologise to him for you. When the police contacted you within minutes of that conversation, you agreed to go to the police station for an interview that night and again made frank admissions including some conduct about which the police did not have information. You have made it clear that you want to apologise to Andrew in person but as there is an intervention order in place you have not yet been able to do so.  I accept all of this as a demonstration of your genuine remorse for your actions.

12Further, your plea of guilty shows that you have accepted your responsibility for committing criminal acts and this acceptance of responsibility is also demonstrated by you repaying your father a considerable sum each week for your legal fees. 

13The next matter that I take into account is highly relevant to my sentencing of you today: the fact that you were a child for two of the three years of the offending.  Had the offending become known to the police before you turned 18, your case would have been dealt with in the Children's Court where a different sentencing regime applies, and as a first offender you would not have received a sentence involving time in custody. 

14In saying this, I am in no way being critical of Andrew for not having told anyone about the offending earlier.  There are many reasons why a victim might not tell anyone, and in your case, the family connection is an obvious reason.  In fact, it is important to recognise that when Andrew told his sister, she did the right thing by reporting it to the police, whereas the family might have preferred to deal with it “in‑house”, potentially without due recognition being paid to it being a criminal offence.  This potential outcome appears likely from the material which indicates that your offending was considered more serious by you and within the family because it involved sexual activity between males and not because it involved sexual activity between an adult and a child in the last year of the offending. 

15You are now aged 20 and you have not been in trouble with the police before this, or since.  The law says that because of your young age the sentence I impose on you must reflect that your rehabilitation is the most important factor for me to take into account, and that rehabilitation is usually a more important sentencing factor than general deterrence.  This places you in a different category to most adult offenders committing sexual offences against children.  I will come back to discuss your rehabilitation in a moment.

16I have been told something of your personal history and circumstances[6]. 

[6] Exhibit 1 – Defence Folder of materials

17Your parents were born in Egypt and migrated to Australia before you and your older sister were born here.  As mentioned earlier, there is extended family here on your mother's side.  Only your immediate family, Andrew's immediate family and a few extended family members are aware of the offending. 

18Both of your parents and your sister are employed.  You initially left school at the end of Year 11 to begin an apprenticeship with City Ford, but returned to school three months into Year 12 when changes to the motor vehicle industry took effect.  Despite this late start, you completed Year 12 successfully. You worked part‑time in a cousin's café but this has come to an end as she is an older sister to Andrew. However she did provide a character reference to the court[7]. In May 2014 you again began working in your preferred field when you obtained an apprenticeship as a mechanic and you are currently in your third year.

[7] Included in Exhibit 1

19Your family is actively involved with a Coptic Orthodox church and you have taken part in church activities all your life. I received a letter from the parish priest[8] as to your character and I understand that you have been counselled by him about the offending.

[8] Ibid

20You have excellent support from your family and the parish priest, and since you were charged, you have made the most of the programs that you undertook through the Youth Justice bail program.  When you were interviewed by police, you were refused bail and after a night in the police cells, you were taken to the Melbourne Custody Centre and eventually released around 6pm that day. I accept that this period in custody when you had just turned 20 and had never been in trouble with the police before will have had a significant impact on you such that you are unlikely to do anything in the future which will put you back into custody.

21I received a pre‑sentence report from Youth Justice[9] about your supervised bail which shows that your progress was excellent.  You were described as a model client and showed your commitment to your rehabilitation even whilst working five and a half days per week, first, in successfully completing the 10 week Positive Lifestyle Program with the Salvation Army Victoria Court and Prison Chaplain Services about which I also received two reports[10]; and secondly; by attending on a psychologist to begin addressing your sexual offending. I note that the authors of both of these reports are present in court today supporting you, together with your parents. 

[9] First report included in Exhibit 1; second report is Exhibit 3

[10] First report included in Exhibit 1; second report is Exhibit 2

22I also received a report from the psychologist to whom you were referred by Youth Justice[11].  From that report and the Youth Justice reports, it seems that initially you lacked insight regarding the seriousness of your offending, including a lack of understanding about consent, which the law says a child cannot give, and about the impact on Andrew from all the work that you have done, you seem to have begun to understand these aspects, and are prepared to undertake further treatment to improve your insight and understanding. 

[11] Included in Exhibit 1

23Although no risk assessment as to sexual re-offending has been made by a professional, it is part of my function to assess the risk of you committing sexual offences against a child in the future.  Since just before the offending stopped, you have been in three intimate relationships with females of similar age to you and there is nothing in the psychological report to suggest that you have a sexual interest in children. I am satisfied that you do not pose a risk to Andrew and you are very unlikely to re‑offend in a sexual way against another child.

24As a result of all the factors in your favour - your plea of guilty, your youth, your lack of prior convictions, the support you have from family and professionals, the commitment you have shown to your rehabilitation, and the fact that you have a low risk of reoffending - I am satisfied that the chances of your rehabilitation are very good. 

25As well as those matters personal to you to which I have referred, I must also take into account what the law calls “deterrence”.  I do not think that your young age affects this principle in this case.  Whilst your rehabilitation is the primary purpose in sentencing you, my sentence must still try to have the effect of deterring other young men from committing sexual offences against underage males.  This is known as general deterrence. However, because I find that you are unlikely to reoffend in a similar way, and I think you might have learned your lesson by your contact with the criminal justice system and time on remand, I think that my sentence has less of a part to play in deterring you from re‑offending.  This is known as specific deterrence.

26Before I turn to the sentence today, there are two other matters that I must deal with.  The first is that an application may be made for an intimate forensic sample to be taken from you and through your counsel you have you not objected to this.  If that order is applied for, I indicate that I am satisfied that it is in the interests of justice, and that in all the circumstances I would order that an intimate forensic sample, namely saliva, be taken from you.  The sample will be taken by a doctor or nurse or other authorised person.  A saliva sample is taken by wiping a swab inside the mouth.  If an order is made, I must inform you that if you change your mind, the police may use reasonable force to enable such a procedure to take place.  If the application is made, there is no need to return to court; I will sign it, and you will be notified as to where to go and what to do. 

27The second matter is that as a result of my sentence today, you become a registrable sex offender.  There is no discretion.  As the charge was committed against a child and involves penetration, it is a Class 1 offence.  You will be required within 7 days of today to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for 15 years.

28Your counsel submitted that despite the seriousness of your offending, the appropriate way to deal with your offence was to release you on a Community Correction Order.  The prosecution submitted that an order not putting you into custody immediately was appropriate in this case.

29You were assessed to determine your suitability for a Community Correction Order.  You were found suitable, and also found to be a low risk of general re‑offending. 

30I have carefully considered what the appropriate sentence is in your case.  Although the offence has a maximum term of 10 years' imprisonment, the law is I must not send you to prison unless I am satisfied that it is the only appropriate sentence.  In your case, I have already indicated that I am not likely to sentence you to a term of imprisonment, and as I do have other options, I will not be sending you to prison today.

31I must weigh the factors in your favour against the serious nature of your offending.  I consider that a Community Correction Order is sufficient to reflect the serious nature of your offending and the court’s denunciation of offences involving sexual offences committed against a child, but also recognises that you were a child at the beginning of the offending, your youth currently, and your prospects of rehabilitation.  The community is more likely to be protected by you receiving continuing support, counselling and treatment.  A Community Correction Order achieves the dual outcome of protection of the community and your rehabilitation, as well as having an aspect of punishment through unpaid community work.  This will be difficult for you as you are working five and a half days per week in paid work, so I will reduce the hours below what would otherwise have been ordered, but it is punishment, and it is not meant to be easy. 

32If you agree, I will release you on a Community Correction Order for 30 months.  That order will have the conditions that are attached to every order which are: that you must report to and receive visits from Corrections Victoria; must notify Corrections Victoria of any change of address or employment; must not leave Victoria without the permission of Corrections Victoria; and must comply with any direction given by Corrections Victoria to ensure compliance. 

33I will also order that you comply with other conditions during that 30 months: you must perform 80 hours of unpaid community work; you must be under supervision; and you must undertake a Sex Offenders Program as directed by Corrections Victoria. Do you agree to being released on a Community Correction Order with all of those conditions attached?

34OFFENDER:  Yes, Your Honour.

35HER HONOUR:  If you are ill or there are other exceptional circumstances, this order may be suspended for a period of time.  If your circumstances change, you may apply to the court for a variation or cancellation of the order.  In either case, you must notify the Community Corrections office, and I recommend you also get legal advice. 

36If you do not complete a condition of this order, you will be brought back before me to be re-sentenced on the original charge and also be dealt with for the breach of the condition.  What will happen then will depend on a number of circumstances but you should be aware that my options are limited and one of those limited options is gaol.  Do you understand what will happen if you do not complete this order? 

37OFFENDER:  Yes.

38HER HONOUR:  Thank you.  Well you will now be asked by my Associate to sign two documents.  The first is acknowledging that you now receive a form notifying you of your reporting obligations under the Sex Offender's Registration Act.  The second is to show that you agree to abide by the conditions of the Community Correction Order and in a moment that will be printed out and your lawyer will assist you with these forms.  Yes, you can take a seat. 

39Yes Ms Casey you or your instructor can go with my Associate to assist.

40MS CASEY:  Thank you, Your Honour.

41HER HONOUR:  Just while that's happening, I think I made an error that in fact the mothers are sisters not cousins.

42MS CASEY:  Yes.

43HER HONOUR:  Yes thank you.  Sorry, if you could stand up again, please. So I have signed those orders now and a copy will be provided to you before you leave court today.  The formal order of the court is that on Charge 1:  You are convicted and released on a Community Correction Order for 30 months with the conditions I have outlined.  In the event that it is necessary to revisit this sentence, I note that you have served two days in pre‑sentence detention for these offences.

44Finally, I advise you that if you had not pleaded guilty but had been found guilty after a trial, the sentence I would have imposed is a Youth Justice Centre Order for detention for eight months. 

45Yes thank you Mr Girton may be released from the dock. 

46MS CASEY:  If Your Honour pleases.

47HER HONOUR:  No other orders? 

48MS WARDA:  No other orders Your Honour.

49HER HONOUR:  I will make that amendment in terms of the family connection and if there is to be an application made for a forensic sample offence I will receive that and deal with that in due course. I do hope that I do not see you again in court and I do wish the family well for this afternoon’s funeral.  Yes thank you I will adjourn.

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