Director of Public Prosecutions v Gleeson
[2021] VCC 147
•19 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
SEXUAL OFFENCES LIST
Case No. CR-20-00414
Indictment No. K12770123
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DION JOHN GLEESON |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 20 August 2020 & 17 November 2020 | |
DATE OF SENTENCE: | 19 February 2021 | |
CASE MAY BE CITED AS: | DPP v Gleeson | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 147 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sexual Penetration of a child under 16 – rolled up charge – youthful offender - intellectual disability – fair prospects of rehabilitation – Verdins’ principles - Justice Plan.
Legislation Cited: Sentencing Act s 5B(2)
Cases Cited: R v Brown [2018] VSC 742, Brown v The Queen [2019] VSCA 286, Clarkson v R; EJA v R [2011] VSCA 157, Verdins v R (2007) 16 VR 269 , Muldrock v The Queen (2011) 244 CLR 120, R v Mills [1998] 4 VR 235, R v Azzopardi (2011) 35 VR 43, Boulton v R (2014) 46 VR 308
Sentence: Community Corrections Order for 30 months with Justice Plan condition.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms. S. Coombes | Office of Public Prosecutions |
| For the Offender | Mr J. Van Arkadie | Victoria Legal Aid |
HIS HONOUR:
1 Dion John Gleeson, you have pleaded guilty to a single charge, that between 20 April 2018 and 21 April 2018, at Bayswater North, you intentionally took part in an act of sexual penetration with Kiandra Gowers[1], a child under the age of 16 years, by introducing your penis into her mouth and vagina.
[1] A pseudonym.
2 This is a rolled-up charge involving you putting your penis into her mouth on three occasions and putting your penis into her vagina on three occasions.
3 The circumstances in which you offended are set out in Exhibit P3, the Summary of Prosecution Opening on Plea. You did not take issue with the opening summary.
4 At the time you offended you were aged approximately 20 years and three months. The victim, was approximately 15 years and five months of age. You and she met through the social media application 'Snapchat' in
December 2017. Over the months leading up to the offending, you communicated through social media and messaging on your mobile telephones. I was not provided with the content of the messages passing between you.
5 On 18 April 2018, following an argument with her mother, Ms Gowers made arrangements to stay at the house of a friend for two nights on 20 and
21 April 2018.
6 On 20 April 2018, before going to her friend's house, Ms Gowers arranged to meet with you at your home address in Bayswater North. This was to be the first time you and she met.
7 Upon arrival at your house, you took Ms Gowers to your bedroom, where you watched a movie. You and she started to hug and kiss. At one point you removed her top and bra, exposing her breasts. She removed her pants and underwear.
8 You tried to put a condom on to your penis. Each time you tried your penis would become flaccid. In an attempt to get an erection you put your penis into the victim's mouth. This is the first instance of sexual penetration relevant to the charge. You again attempted to put a condom over your penis but were unsuccessful. You rolled on top of the victim and asked her to put your penis inside her vagina, which she did. Your penis became erect and you and she then had sexual intercourse. You continued until you ejaculated inside of her. This is the second instance of sexual penetration relevant to the charge.
9 In her recorded evidence, Ms Gowers told police that she gave you permission to have sex without the use of a condom but asked that you not ejaculate inside of her.
10 Ms Gowers left your premises at approximately 9.30 pm that evening and went to her friend's address. You and she made an arrangement for her to return to your house the following evening.
11 On 21 April 2018, Ms Gowers arrived at your house at approximately 8.15 pm. She took a shower before dressing and returning to your bedroom. In the bedroom, you removed your tracksuit pants and boxer shorts and lay on your bed whilst Ms Gowers placed your penis in her mouth and engaged in oral sex. This is the third instance of sexual penetration relevant to the charge.
12 You and Ms Gowers then removed her clothing and she lay on your bed. You again attempted to put a condom on your penis, but you were unsuccessful. Ms Gowers allowed you to penetrate her vagina without a condom, but again told you not to ejaculate inside of her. You and she had sexual intercourse and despite her request, you again ejaculated inside of her. This is the fourth instance of sexual penetration relevant to the charge. Following this, Ms Gowers became upset because you ejaculated inside of her vagina, and you and she argued. You told her she should leave your house, but as it was getting close to midnight, and she did not want to leave, she apologised to you and was allowed to remain.
13 You both lay in bed and watched a movie. After a few hours you suggested that you both have sex again. After some initial resistance, because she was tired, Ms Gowers agreed. She again placed her mouth over your penis. This is the fifth instance relevant to the charge. Following performing oral sex on you, you again penetrated her vagina with your penis until you ejaculated inside her vagina. This is the sixth instance of sexual penetration relevant to the charge.
14 You told Ms Gowers that she would have to leave your house early that following morning, as you had arranged for a friend to come over. She left at approximately 7.30 am. After she left, Ms Gowers sent you several text messages. A number of messages were exchanged between you, but eventually you stopped responding to her messages.
15 Ms Gowers told two of her friends that she had unprotected sex and was worried that she may be pregnant. She subsequently disclosed the offending to staff at school and the matter was reported to police.
16 You were arrested on 25 April 2018. When interviewed by police, you denied all sexual penetration allegations. You originally denied that Ms Gowers had attended your address, but then admitted that she did on the afternoon of
20 April 2018, saying that you had watched a movie together. You denied that she returned to your home on the Saturday or spent the night at your place on that Saturday, being 21 April 2018.
Impact Statement
17 A victim impact statement was tendered and marked Exhibit P2. Ms Gowers speaks of the anger and blame she feels towards herself for what occurred. She was concerned about the prospect of pregnancy and was required to undergo medical examination to determine whether or not she was pregnant. She felt terrified about having to tell her parents what had occurred and of being judged by them and others. The emotional impact of your offending required her to undergo counselling with a psychologist. Your conduct also impacted on her sleep and school attendance. She feels physically affected and psychologically ruined.
Personal circumstances
18 You are now aged 23. You were aged 20 at the time of these offences.
19 It is clear from the submissions of your lawyer and the psychological reports tendered on your behalf that you have had a most difficult upbringing.
20 Your parents separated when you were six years of age. You lived with your mother but continued to see your father following separation. Your father committed suicide on 23 April 2018, two days before you were interviewed by police for this offending. You were feeling the effects of his death at the time you were interviewed.
21 You have two older half-sisters, one of whom is aged 41 and the other aged 26.
22 At the age of five you were diagnosed as having an intellectual disability.
23 I was told that your father had significant gambling problems, with aggressive outbursts at home in the wake of his losses. This resulted in the relationship between him and your mother breaking down.
24 Your mother is also diagnosed with an intellectual disability and is in receipt of the Disability Support Pension. You have a good relationship with her but that has not always been so.
25 Child Protection intervention commenced in March 1999 when you were a little over 12 months of age. You were then noted to have injuries such as burn marks, which gave rise to concerns that you were being physically harmed. Child Protection intervention has been a feature throughout your childhood and was triggered by various risks, including exposure to physical violence, sexual abuse and general parental neglect. Between the ages of 10 and 15 you were subject to orders which placed you in the custody of the Secretary to the Department of Health and Human Services and you lived at several out-of-home care placements.
26 You attended a number of different primary schools. In 2011 you attended a school for disengaged children. In 2012 you began attending the Heatherwood Special School.
27 In 2012, Child Protection intervention increased arising from reports of physical abuse from your mother's then partner and allegations of sexual abuse from others. You attended at the Eastern Centre Against Sexual Assault, but because of your cognitive disabilities, counselling was abandoned after four sessions. It was also noted that you were demonstrating extreme anxiety from being around other children and you were afraid to leave home for fear of being taunted and assaulted.
28 You have been living in and out of foster care up until approximately the age of 15 when you returned to live permanently with your mother.
29 You were living with your mother at the time of your offence and you continue to do so.
30 You have not engaged in formal education since the age of 15. I was told that you suffered severe anxiety attending school, particularly as a result of the teasing and bullying you endured. You have been in receipt of the Disability Support Pension since the age of 16. Your intellectual disability has been recognised under the Disability Act.
31 Exhibit D3 is a neuropsychological report of Martin Jackson dated
7 August 2020, tendered on your behalf.
32 Mr Jackson noted that you were enrolled at the Heatherwood Special School between 16 April 2012 and 23 May 2013. You frequently did not attend classes or complete work. You have not undergone any further education since leaving Heatherwood. You have not had any paid employment since leaving school.
33 Mr Jackson reviewed the records of the Department of Health and Human Services, to the extent that they were available to him. He noted that protective intervention by the Department first occurred on 17 March 1999 because of the severity of your injuries and several inconsistent explanations for those injuries. Protective intervention also occurred in relation to one of your sisters.
34 The records suggest your mother lacked insight into protective concerns. The Summary of Intervention noted that whilst you were residing in your mother's care, you were exposed to significant emotional and physical harm due to her ongoing mental health concerns and continual struggle to provide appropriate parental boundaries and consequences for you. You were the subject of multiple Child Protection Orders.
35 A confidential report noted that you had experienced significant sexual assaults with inappropriate adults in the past.
36 On the basis of his assessment, Mr Jackson found that your full-scale IQ score was 51, which places you in the extremely low range and is consistent with a moderate intellectual disability.
37 You scored in the extremely low range in areas including verbal intellectual ability; perceptual intellectual ability; attention skills; new learning and memory of both verbal and perceptual information; all executive skills; and impulse control. Your thinking was particularly concrete. You have relative strengths in the areas of reading regular words, vocabulary and immediate memory span and working memory span.
38 Mr Jackson stated that you have been intellectually disabled all of your life, including at the time of your offending. Mr Jackson also considered that you have a disorder of impulse control and stated you are very likely to act on impulse without thinking about the potential outcomes or ramifications of your behaviour. He said this is quite typical of someone with a moderate intellectual disability.
39 Mr Jackson found no evidence of any specific personality disorder other than the disorder of impulse control.
40 Mr Jackson stated that your executive skills are extremely poor and you have limited, if any, ability to think clearly, make calm reasoned decisions and appropriate judgments or to control your emotions or faculties. However, you do understand the wrongfulness of your offending behaviour. You told
Mr Jackson that you were aware at the time of your offending that it was wrong to have sex with a girl under the age of 16. This is consistent with what you said in your interview with police.
41 Mr Jackson is of the opinion that you would find the prison environment very difficult to cope with even though it is highly structured and routined. He stated that your moderate intellectual disability and associated cognitive and behavioural impairments will adversely affect your ability to cope with imprisonment. Mr Jackson stated that because of your lack of executive skills, you are also at risk of being used and abused by other prisoners.
42 As for your rehabilitation, Mr Jackson stated that there is no treatment, intervention or rehabilitation that is going to improve your cognitive abilities. He said that rehabilitation and treatment are about getting appropriate environments for you, including your living environment and social environment. Mr Jackson considered that the more structures there are around you, the less effect your intellectual disability will have on your functioning.
43 Without any further interventions and treatment, it is his opinion that you are highly likely to continue to act impulsively in the community. As to the risk of recidivism, Mr Jackson stated that from a general viewpoint, you do have a high risk of repeating behaviours that you have done in the past, although the likelihood of reoffending in this manner is lowered because you know it is an offence to have sex with a person under the age of 16 and you know to ask a person for their age.
44 Exhibit D2 is a psychological report of Dr Dion Gee dated 9 July 2020.
45 Dr Gee noted that your formative years were marked by extensive social and emotional disruption and disadvantage, with your development being further undermined by the presence of a neurodevelopmental disorder. He considered you suffer from a disorder of intellectual development at the mild level. This is a lifelong neurodevelopmental disorder that emerges at birth and impacts many aspects of a person's development and functioning.
46 Dr Gee noted that your developmental history was underpinned by parental substance abuse, early breakdown in the family unit, exposure to domestic violence, parental physical and emotional abuse, ineffectual and abusive maternal bonding and parenting, an absent father, failure to thrive, sexual abuse and victimisation, dysfunctional and unsafe domiciliary environments, social isolation and repeated exposure to traumatic events, to name but some such factors. Your transition through adolescence into early adulthood has been marred by considerable psychosocial emotional adversity and was deprived of adaptive and prosocial experiences. You became disconnected from most support services when your child protection file was closed in
June 2015, when you were 17 years of age.
47 From a review of all of the materials with which he was provided, as well as interviewing you and your mother, Dr Gee reported the following:
'It appears that Mr Gleeson's sexually-aberrant behaviour is best construed as an unsophisticated, ill-conceived and naïve 'adolescent' attempt at social connectedness and sexual expression/exploration in a socially, emotionally, and sexually immature 22 year old male labouring under enduring biopsychosocial dysfunction that sees him presenting with a mental age … commensurate with that of an individual in mid-adolescence.'
48 Dr Gee assessed your risk of future sexual violence using the Static-99R and the RSVP tools. Using the former tool, your score placed you at an above average risk level for being charged or convicted of another sexual offence. On the RSVP assessment, you presented with a moderate, although on the cusp of low, risk of sexual violence in the community. You were further assessed using the structured assessment of protective factors for violence risk evaluation tool. Your profile suggested that your current circumstances afford a low degree of protection against a relapse into further sexual violence. You require a period of engagement in a suitably tailored program of intervention around your past aberrant sexual behaviour.
49 Dr Gee stated it was difficult to assert a direct causal nexus between your impaired mental functioning and the offence; however, he went on to state that clinically, there appears to be a clear association mediated through your enduring psychopathology. That is, 'on a backdrop of interpersonal/social skills deficits, emotional and behavioural dysregulation, cognitive distortions and psychosocial compromise', it is likely that you were placed in a position where you would have been more vulnerable than the average person to act in a manner without having given due consideration to the consequences of your actions. This same compromise would likely have obscured your ability to make reasoned and ordered judgments, and seemingly eroded your ability to control your urges. Thus he considered that your presenting psychopathology, both at the time of the offending and the point of assessment, was clearly connected to the index offending.
50 However, Dr Gee considered that your level of impaired mental functioning did not completely obscure your intent to commit the offence, although your ability truly to appreciate the wrongfulness of your conduct was less clear.
51 Dr Gee considered that if you were afforded an opportunity to access and engage in psychological and/or psychosocial intervention in a timely manner, arguably you would present a fair to good prognosis for rehabilitation.
52 Dr Gee was of the opinion that imprisonment would weigh much more heavily on you than on a person in normal health. Furthermore, incarceration would likely result in a further deterioration of your mental health; that is, an exacerbation of your anxiety, trauma sequelae, and the likely emergence of depressive symptomology. You would also be at risk of social isolation, marginalisation and possible exploitation. Dr Gee stated that you presented with a mental age, as discrete from your chronological age, commensurate with that of an individual in mid-adolescence.
53 A matter of concern, expressed in both reports, was your limited insight into your intervention needs regarding both your mental health and criminogenic difficulties.
54 Although Dr Gee considered you suffered from a mild level of Disorder of Intellectual Development, I prefer the finding of Mr Jackson, that you suffer a moderate intellectual disability. It should be noted that it was Dr Gee who suggested that you undergo a comprehensive re-evaluation of your neuropsychological functioning to obtain an up to date baseline measure of your capacities. As I understand it, this is why Mr Jackson's report was obtained.
Criminal History
55 You have a relatively minor criminal history commencing on 26 June 2013 at the Ringwood Children's Court for the offences of intentionally damaging property, without authorisation or excuse entering a private place, shop theft and possessing a controlled weapon without excuse. Your case was adjourned for 12 months on you entering into a bond to be of good behaviour. You were of good behaviour and your bond was dismissed.
56 On 3 September 2014, you were before the Ringwood Children's Court for a charge of dishonestly receiving stolen goods. You were placed on a bond to be of good behaviour for a period of 12 months, with a special condition that you follow the lawful directions of your disability services worker.
57 On 14 October 2015, at the Ringwood Children's Court, you were placed on a 12 month good behaviour bond for the offence of theft. A special condition of the order was that you continue to engage with the specialist intensive support program as required.
58 On 14 November 2017, for the charges of exceeding the prescribed concentration of alcohol whilst driving, criminal damage and threat to destroy property, you were fined, with conviction, an aggregate sum of $750 and you were disqualified from driving for a period of 14 months.
59 Importantly, you have no previous convictions for sexual offending.
Submissions
60 Mr Van Arkadie, who appeared on your behalf, relied on a number of matters in mitigation of penalty. I summarise them as follows:
61 First, you pleaded guilty at the earliest reasonable opportunity.
62 Secondly, you were a youthful offender at the time you committed the offence and at the time of sentencing. As already mentioned, you are now aged 23 years of age.
63 Thirdly, Mr Van Arkadie submitted that the delay in the charges being brought and the time taken for the matter to be finalised rendered you ineligible for a youth justice disposition.
64 Fourthly, by reason of your intellectual disability, reliance was placed on the principles set out in cases such as Verdins v R[2] and Muldrock v R[3].
[2]Verdins v R (2007) 16 VR 269
[3] Muldrock v R (2011) 244 CLR 120
65 Fifthly, reliance was placed upon the effects of your disadvantaged and dysfunctional upbringing.
66 Sixthly, Mr Van Arkadie submitted that you were remorseful, presented a low to moderate risk of reoffending sexually in the future and that you present a fair to good prognosis for rehabilitation.
67 Ms Coombes, who appeared on behalf of the Director of Public Prosecutions, submitted that the offence with which you are charged is a serious offence, as reflected by the maximum penalty of 15 years. She submitted that your offending was aggravated by the age disparity between you and your failure to use a condom and ejaculating inside of the victim, which exposed the victim to the risk pregnancy and sexually transmitted disease. It was further noted that due regard must be had to the fact that this is a rolled-up charge of six separate acts of penetration and the totality of harm described in the charge.
68 The offence is a standard sentence charge, and it was submitted that I must also have regard to the standard sentence of six years' imprisonment.
Justice Plan and Community Correction Assessment
69 Following the plea hearing I sought a Community Correction’s assessment and a Justice Plan assessment.
70 A disability overview report and Justice plan, both dated 29 October 2020, authored by Benjamin McIntyre and Noelene Smith were filed with the Court.
71 You have been issued with a statement confirming you have an intellectual disability as defined by the Disability Act 2006. The report confirms many of the matters outlined in Mr Jackson's and Dr Gee's reports.
72 It was noted that you experienced significant disadvantage during early childhood, with multiple interagency interventions from one to 15 years of age. This was due to your chaotic home environment that exposed you to significant risk of physical and emotional harm.
73 You have engaged in minimal levels of formal and informal support from the age of 15. You are capable of independently completing many domestic tasks without assistance and you are also able to drive. It was noted you experience high levels of social isolation with little opportunity to develop positive networks or explore future goals. An NDIS plan was approved in
May 2017, but you did not engage with the plan and it was not implemented.
74 The Justice Plan recommends that you engage with a Disability Justice Coordinator from the Department of Health and Human Services and that you agree to any supports and treatment that are defined by the Disability Justice Coordinator. This recommendation is made to reduce the likelihood of you reoffending.
75 A Community Correction Order assessment outcome report dated
6 November 2020, authored by Antonella Veneziano, was also filed with the Court. You engaged well during the assessment and answered all questions put to you. The author considered you demonstrated some insight into your offending behaviour, although you did state you were not aware of the victim's age. This appears to be contrary to what you told police when interviewed. Nevertheless, you acknowledged that your behaviour was unacceptable, and you expressed remorse towards the victim. You are considered suitable for a community correction order.
76 A further plea hearing was conducted on 17 November 2020 and, following that hearing, further written submissions were received from both counsel. In his written submissions, Mr Van Arkadie submitted that in considering s.5A Sentencing Act, your intellectual disability is a relevant objective factor. He relied on the decision of Champion J in R v Brown.[4]
[4] [2018] VSC 742
77 In her written submissions, Ms Coombes noted that the Court of Appeal in Brown v The Queen[5] did not directly determine whether or not cognitive impairments are proper 'objective considerations' but did provide guidance that effectively resolves the question before this Court. At paragraphs 36 and 37, the Court stated:
[5] [2019] VSCA 286
[36] 'It follows that the 'determination' contemplated by s 5A(3) is a determination for the sole purpose of giving content to the hypothesised mid-range offence. There is nothing in s 5A(3), nor in s 5B(2), to suggest that the sentencing judge is required, or authorised, to make an assessment of the seriousness of the subject offence governed by the 'objective factors' definition in s 5A(3).
[37] The judge is still required to assess the seriousness of the subject offence. Now, as before, the judge is required by s 5(2)(c) of the Act to have regard to 'the nature and gravity of the offence'. That obligation is unaltered by the advent of the standard sentence scheme. And the assessment of offence seriousness is to be done as it has always been done, without reference to the strictures imposed by s 5A(3).'
Sentencing considerations
78 The offence with which you are charged is undoubtedly a serious one. This is reflected by the maximum penalty of 15 years' imprisonment.
79 The charge to which you pleaded guilty is a rolled-up charge comprising six instances of sexual penetration occurring on two separate occasions over two days. As was submitted by Ms Coombes, due regard must be had to the totality of the harm caused, although you are subject only to a maximum penalty of 15 years. The six instances elevate the seriousness of your offending. The fact that you were not wearing a condom and ejaculated into the victim's vagina on three occasions aggravates your conduct.
80 Whilst the victim consented to the sexual activity, that provides you with no excuse for your conduct. She was a child, whom the law presumes is incapable of giving informed and meaningful consent to sexual activity. She is in no way to blame for your conduct.
81 As was said in ClarksonvThe Queen[6], the absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity…' The Court stated that a child's consent can never, of itself, be a mitigating factor.
[6]Clarkson v R; EJA v R [2011] VSCA 157 [3]-[4]
82 It is nevertheless relevant to consider the circumstances in which the consent came to be given. In your case, you and Ms Gowers had been communicating for a period in excess of four months before the offending occurred. Although police seized your phones, it was not suggested that there was anything improper in those communications. It is unclear what was the status of your relationship, but I was told by Mr Van Arkadie that Ms Gowers described you to others as her boyfriend.
83 I do not consider there was a significant age difference between you, particularly when regard is had to your intellectual disability and immaturity. The chronological age difference was in the order of some four years and ten months, but you were operating, according to Dr Gee, with a mental age at the mid-adolescent level. There was not any significant power imbalance between you, nor any breach of trust. The ostensible consent of the victim was, relatively speaking, freely given, save for your ejaculating into her vagina against her stated wishes. There was some mild resistance to the last two acts, on the basis that Ms Gowers said she was tired, but I do not consider this significant. There were no threats or violence involved in the offending.
84 Despite that, and illustrative of the presumption of harm in cases of premature sexual activity, actual harm resulted from your conduct, as evidenced in the victim's impact statement.
85 Your plea of guilty, entered at the earliest reasonable opportunity, is a matter which entitles you to a real measure of leniency. By your plea, you have saved the Court and the community the time and cost of a trial. This is particularly important during the COVID-19 pandemic, given this Court's suspension of jury trials from March 2020 until relatively recent times. More importantly, your plea has spared the victim and other witnesses from having to undergo the ordeal of giving evidence. In pleading guilty, you have facilitated the course of justice and have also accepted responsibility for the wrongfulness of your conduct.
86 I have more difficulty with your counsel's submission that you are genuinely remorseful. You lied to police when interviewed and, as was conceded by your counsel, you have provided various accounts when assessed by Dr Gee and Mr Jackson. However, in this regard, I take into account your intellectual disability, impulse control disorder and immaturity. On balance, I am prepared to accept that you are remorseful. I make this finding, having regard to your plea of guilty and also your expression of remorse when speaking to
Ms Veneziano.
87 In my opinion, your youth and immaturity are significant factors in the determination of sentence. As already stated, you were 20 at the time this offence was committed. You are still a relatively young man.
88 Reliance was placed on the well-known principles set out in R v Mills[7] and R v Azzopardi.[8]
[7] [1998] 4 VR 235
[8] (2011) 35 VR 43
89 In Mills, the Court of Appeal approved the following three propositions as relevant to sentencing young offenders:
(i) Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
(ii) In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)
(iii) A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s.5(4) of the Sentencing Act.) [9]
[9] Op cit 241
90 Given your age, I consider there is great public benefit if your rehabilitation can be achieved. You are not without hope of being rehabilitated, particularly if you can access psychological and psychosocial assistance in a timely manner and get appropriate structures in place around you. Those necessary supports are available in the community. Your rehabilitation will not be without its challenges, however, with appropriate support structures, I am prepared to accept that you have fair prospects of rehabilitation.
91 In my opinion, a term of imprisonment in an adult gaol is likely to harm your prospects of rehabilitation. I accept that you will be vulnerable in prison, not just because of your youth and cognitive deficits. You have never before been sentenced to a term of imprisonment. I also have regard to the restrictions in place, including on personal visits, by reason of the COVID-19 pandemic.
92 I accept also that there was delay in charging you, which may have resulted in you missing the opportunity for a Youth Justice Centre disposition. Although you were interviewed on 25 April 2018, you were not charged until the
16 October 2019, by which time you had turned 21 years of age.
93 In sentencing you, I am required to have regard to the considerations set out in s.5 of the Sentencing Act 1991 of just punishment, deterrence, rehabilitation, denunciation and protection of the community.
94 In the case of sexual offending against young children, the principles of deterrence and denunciation are usually paramount considerations. In your case, however, I must have regard to your intellectual disability and the principles enunciated in cases such as Verdins and Muldrock.
95 In Muldrock, the High Court cited with approval a frequently quoted passage from the judgment of Young CJ in R v Anderson:
'General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.' [10]
[10] Muldrock v The Queen [2011] HCA 39 at [53]
96 The Court went on to state:
'The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.[11] [Citations omitted]'
[11] Ibid [54]
97 It was submitted on your behalf that I have regard to your intellectual disability as an objective circumstance of your offending. I do not propose to accede to that submission but will have regard to that disability as relevant to an assessment of your moral culpability. This appears consistent with the decision in Brown v The Queen.
98 In my opinion, your moral culpability was limited by reason of that intellectual disability, as well as your impulse control disorder (often associated with intellectual disability) and your dysfunctional upbringing. In all of the circumstances, I consider your moral culpability to be low.
99 That conclusion also means that denunciation of your conduct will also be a less relevant consideration.
100 I also find, having regard to the opinions expressed by Mr Jackson and
Dr Gee, that there is a causal relationship between your intellectual disability, impulse control disorder, psychopathology and the offence. Your ability to think clearly, make calm reasoned decisions and appropriate judgments, and to control your emotions or faculties was certainly compromised at the time of your offending by reason of those difficulties.
101 In Verdins, the Court stated that:
'Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.'
102 In my opinion, in the circumstances of your case, general deterrence is not to be eliminated but it should be moderated.
103 Similarly, I consider that the need for specific deterrence should also be moderated.
104 I also consider that the existence of your intellectual disability and impulse control disorder will mean that a gaol sentence will weigh more heavily on you than it would on a person in normal health. I expect that you will have difficulty understanding and following instructions, communicating with others and will be vulnerable to other prisoners in gaol.
105 However, I am not satisfied on the balance of probabilities that the psychological evidence goes so far as to enliven the sixth principle referred to in Verdins.
106 I have also had regard to your dysfunctional and disadvantaged background. This is a matter of some significance. As already mentioned, throughout your childhood and commencing at a very young age, you were exposed to violence, parental neglect and sexual abuse, to name but some of the many difficulties that confronted you during your formative years. Having regard to Dr Gee's report in particular, I accept that your developmental history deprived you of necessary adaptive and prosocial experiences. This also goes some way to explaining your offending behaviour, although not excusing it. Your grossly dysfunctional upbringing calls for some moderation in the sentence to be imposed.
107 The offence to which you have pleaded guilty is a standard sentence offence. As mentioned, the standard sentence for the offence of sexual penetration of a child under 16 is six years' imprisonment.
108 The Court of Appeal in Brown v R explained that:
'…a judge when sentencing for a 'standard sentence offence' must 'take the standard sentence into account as one of the factors relevant to sentencing'. This requirement:
·is to be treated as a 'legislative guidepost', having the same function as the maximum penalty;
·does not affect the established 'instinctive synthesis' approach to sentencing;
·does not require or permit 'two-stage sentencing'; and
·does not otherwise affect the matters which the court may, or must, take into account in sentencing.[12] '
[12] At [4].
109 In the course of submissions, I was referred to a number of sentencing cases involving a relevant standard sentence offence.[13] I have had regard to those sentencing decisions. In considering current sentencing practice, I must only have regard to sentences previously imposed for the offence as a standard sentence offence.[14] There are not many such cases, given the introduction of the standard sentence regime in recent times only. The cases to which I was referred may be used as yardsticks illustrating, but not defining, the possible range of sentences available. I have had regard to them in that sense and as one only of a number of factors that inform the determination of an appropriate sentence.
Sentence
[13] DPP v Calladine [2020] VCC 2014; DPP v Yuen [2020] VCC 1527; DPP v Mafrici [2020] VCC 396; DPP v Gay [2020] VCC 548; DPP v Jenkins [2019] VCC 1504.
[14] Sentencing Act s 5B(2)
110 In all the circumstances of your case, I do not consider it necessary to impose a term of imprisonment. In my opinion, a Community Correction Order is sufficient to meet each of the relevant sentencing considerations.
111 In Boulton v R, the Court of Appeal held that:
'… a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[15]'
[15] (2014) 46 VR 308 at [131]
112 In coming to this conclusion it follows that I consider that a sentence lower than the standard sentence is appropriate. In my opinion, and notwithstanding the circumstances of aggravation, your offending falls below the mid-range level of seriousness and there are significant factors in mitigation that justify a sentence other than one of imprisonment. I have particular regard to the findings of Mr Jackson and Dr Gee concerning your disabilities; your young age; your low level of moral culpability; the applicability of the considerations in Verdins and Muldrock; your disadvantaged and dysfunctional upbringing; your plea of guilty; the delay between offending and sentence; and your prospects for rehabilitation. I am also mindful that a term of imprisonment must be a sentence of last resort. You have never before been placed on a Community Correction Order, and the facilities that can be put in place will promote your rehabilitation, which in turn will best serve to protect the community. Of course, if you breach a Community Correction Order, you will be liable to be re-sentenced on the charge before me.
Sentence
113 The sentence I propose is as follows. The order will last for 30 months and commence on 19 February 2021, which is today, and ends on
18 August 2023.
114 You must attend at the Ringwood Community Correctional Services within two clear working days after the commencement of this order.
115 The mandatory terms that apply to all Community Correction Orders are:
116 You must not commit another offence for which you could be imprisoned during the time that the order is in force;
117 You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011, which means, in effect, that you must not attend at a Community Corrections office either drunk or under the influence of drugs;
118 You must report to and receive visits from the Secretary (or his or her delegate);
119 You must report to the Community Corrections Centre within two clear working days of today;
120 You must let a Community Corrections officer know within two clear working days of you changing your address or job;
121 You must not leave Victoria without first getting permission to do so from the Secretary (or his or her delegate);
122 You must obey all lawful instructions from and directions of the Secretary (or his or her delegate).
123 Now, in addition to those mandatory terms, I also propose to impose the following conditions:
124 Supervision - You must be under the supervision of a Community Corrections Officer for a period of 30 months;
125 Treatment and Rehabilitation - You must undergo any mental health assessment and treatment, and that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager.
126 You must participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager and;
127 Justice Plan (s.80) - You must participate in the services specified in a Justice Plan for 30 months.
128 You should understand, Mr Gleeson, that if you breach the terms of the order, you may be brought back before me and re-sentenced on the original charge. What I am going to do now is stand this matter down for five minutes to give you, Mr Van Arkadie, the opportunity to review the terms of the order with your client. I will then ask him whether he intends to enter into the order in those terms, and whether he understands the consequences of a breach.
129 All right, how much time do you think you will need?
130 MR VAN ARKADIE: Your Honour's indication of five minutes will be ample.
131 HIS HONOUR: Will that be sufficient?
132 MR VAN ARKADIE: Yes, thank you, Your Honour.
133 HIS HONOUR: All right, thank you. All right, well I will stand down for five minutes or so.
134 (Short adjournment).
135 HIS HONOUR: Mr Van Arkadie, have you carefully explained the terms that apply to the order?
136 MR VAN ARKADIE: I have, Your Honour, and I am satisfied that Mr Gleeson understands the obligation that he is entering into.
137 HIS HONOUR: Thank you very much. Mr Gleeson, you have been taken through each of the conditions by your counsel.
138 OFFENDER: Yes, correct.
139 HIS HONOUR: Do you understand that if you breach those conditions, you may be brought back before me to be re-sentenced?
140 OFFENDER: Yes, I understand, Your Honour.
141 HIS HONOUR: And do you also agree to enter into the community correction order?
142 OFFENDER: Yes, I agree.
143 HIS HONOUR: All right, thank you. That order can be signed and then I will sign it.
144 MR VAN ARKADIE: Thank you, Your Honour. If I may approach the dock?
145 HIS HONOUR: Please.
146 MR VAN ARKADIE: Thank you for the opportunity, Your Honour.
147 HIS HONOUR: Thank you. Ms Gleisner, are there any other matters that the Crown needs to raise?
148 MS GLEISNER: Yes, Your Honour. The Sexual Offenders Act, the obligations under SORA.
149 HIS HONOUR: Yes, just bear with me for one moment, please? What is the period for reporting?
150 MS GLEISNER: Fifteen years.
151 HIS HONOUR: Fifteen years, did you say?
152 MS GLEISNER: Yes. Yes, Your Honour.
153 HIS HONOUR: Mr Van Arkadie, do you agree with that?
154 MR VAN ARKADIE: Yes, Your Honour.
155 HIS HONOUR: Yes, what is the class of offence, please?
156 MS GLEISNER: It is a Schedule 1, class 1 offence.
157 HIS HONOUR: Mr Van Arkadie, do you agree with that?
158 MR VAN ARKADIE: Yes, Your Honour.
159 HIS HONOUR: All right. Mr Gleeson, would you please stand again?
160 OFFENDER: Yes.
161 HIS HONOUR: Pursuant to the provisions of the Sex Offenders Registration Act, because you have been found guilty of a Schedule 1, class 1 offence, you are required, under that Act, to report for the next 15 years. Now, I will have handed to you a document that sets out your obligations for reporting, that informs you of offences and penalties if you should fail to report as required, and I am sure that Mr Van Arkadie will explain that in detail to you. It is important that you observe that so that you are not getting into any further trouble.
162 OFFENDER: Yes.
163 HIS HONOUR: My associate will print of the relevant documentation. I will also ask you to sign a document that acknowledges your receipt of that documentation. So, just bear with us for the moment.
164 MR VAN ARKADIE: Your Honour, perhaps while that is being prepared, I would just raise that I understand that there was an ancillary order sought on a previous occasion, it was a disposal order, and I am not sure whether my learned friend was intending to raise that as a final matter, but if it assist Your Honour - - -
165 MS GLEISNER: Yes, Your Honour.
166 MR VAN ARKADIE: - - - I do note it is being communicated to defence and it is consented to.
167 HIS HONOUR: Yes, you are quite right, this is a disposal order of a number of items attached to the schedule, 11 items in the disposal order dated 26 November 2020. What is your client's attitude?
168 MR VAN ARKADIE: He consents to the disposal, Your Honour.
169 HIS HONOUR: Thank you very much, Mr Van Arkadie. I will make that order.
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