Director of Public Prosecutions v Glover (a pseudonym)
[2022] VCC 1309
•29 July 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AAYAN GLOVER (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE SYME | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 May 2022 | |
DATE OF SENTENCE: | 29 July 2022 | |
CASE MAY BE CITED AS: | DPP v Glover (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1309 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sexual penetration of a child under 16 – Where a power imbalance exists but the offender is not in a position of authority – Limited remorse and victim blaming – Application to exempt offender from the Sex Offenders Register – Discretion to exclude young offenders from the Sex Offender Register where risk of reoffending very low - Application refused
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited: Boulton v The Queen [2014] VSCA 342.
Sentence: Convicted and sentenced to a Community Corrections Order of 2 years and 6 months duration. Registration on the Sex Offenders Register for a period of 15 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecution | Ms H. Baxter | Ms M. Moss |
| For the Accused | Ms R. Khan | Ms L. Bowden |
HER HONOUR:
1 Aayan Glover,[1] you have plead guilty to two charges. Charge 1, that between 1 and 30 April 2019 you intentionally touched Hong Runyan,[2] a child who was under the age of 16 years, where circumstances where the touching was contrary to community standards of acceptable conduct. This is contrary to s 49D of the Crimes Act carries with it a maximum penalty of 10 years imprisonment and is subject to a standard sentence consideration of four years.
[1]A pseudonym.
[2] A pseudonym.
2 Charge 2 of the same date at the same place at the same time, you intentionally took part in an act of sexual penetration with Hong Runyan, a child under the age of 16 years in that you introduced your penis into the mouth of that person. This is contrary to s 49B, the maximum penalty for which is 15 years imprisonment, and it carries with it a standard sentence of six years.
3 The court is required to take into account the standard sentence indicated in Counts 1 and 2, and considerations outlined in s 4B of the Act. The period specified as the standard sentence for the offences is as a guide for middle-range objective seriousness offences considering only the objective factors. The standard sentence, together with the maximum penalties are to be taken into account as one of the factors relevant to sentencing or as a guide. It does not affect the instinctive synthesis approach or permit a two-stage sentencing approach, and I acknowledge that. I accept that you are not a serious offender as defined as the event occurred when you were under 21 years of age.
4 Having pleaded guilty to a class 1 and class 2 offence, you are automatically registrable as a sex offender, and under normal circumstances the reporting period is 15 years. There is an application to exempt you from registration and I shall refer to this later.
5 You have no prior convictions. That fact, together with the other matters to which I will refer to, may extend you some leniency with respect to the sentence to be imposed. However, it must be kept in mind that the opportunity you had to take advantage of this young girl arose only because of your good reputation and overall position in your community association which allowed her and her parents to believe that she would be safe in your home. Obviously, she was not.
Circumstances of offending
6 The facts relevant to the offence as set out in the prosecution opening, and as confirmed today, are not in dispute. You were born on in April 1999 and were aged between 19 and 20 at the time of the offending stated in the indictment. You are now 23. At the time of the offending, you resided with your parents and younger siblings.
7 The victim was approximately 15 years and four months old at the time of the offending. You were known to each other through a community organisation she had attended from when she was a young child.
8 In late 2018, you and she formed a close friendship/relationship and started communicating by Snapchat every day. You had a leadership role and a mentoring role in a youth association. The prosecution is not alleging that this placed you in a position of care, supervision, and authority over the victim. However, I observe that your leadership role within an organisation in which she was a member, therefore, is a role not without some importance.
9 In April 2019, the victim attended your house to celebrate your younger sister's birthday intending to sleep over with other young girls. The girls stayed up watching YouTube videos until about 2 am. You were not at home as you were attending another birthday party, or another party elsewhere.
10 You returned home at approximately 3 am. The victim, your sister and another girlfriend were all sleeping in the loungeroom. Your sister and the other girl were both asleep. You messaged the victim asking if she was still awake. The messages were exchanged and the victim went into your bedroom at your request.
11 She sat on the edge of your bed and you both talked for about 10 minutes. You requested she move closer while continuing to talk. You reassured her that nothing was going to happen. You put the victim in a playful headlock.
12 You told her you wanted her to lay next to you and you released her from the headlock, drew her down beside you on the bed. You continued to talk. You began to touch her on the breasts, both under and over her clothing. You asked her to take off her top and she complied. You asked her to give you oral sex. She said, no, she did not want to.
13 Your versions of events to the pre-sentence report writer blame the victim for wanting oral sex, and I referred to this at the commencement of my proceedings. This may appear to reflect a lack of acceptance of responsibility for an event which was aimed at your own pleasure.
14 There is no dispute that the young victim consented, whether reluctantly or not. You undid your pants and asked if she was scared. You again asked her to suck your penis. The victim was hesitant. She inserted your penis into her mouth for about 20 seconds before stopping and saying she did not want to do it anymore.
15 You pulled up your pants and then started kissing her on the cheeks and lips. You both continued to talk. You told her that she cannot tell anyone about what happened because you would get into big trouble. She left your room and returned to the living room. Later, the victim told her friend that you had kissed her.
Incriminating conduct
16 In early 2020, approximately three-quarters of a year later, the victim and you stopped messaging each other frequently on Snapchat. In May of the same year, you were asked about your offending by a member of the youth group. You denied it.
17 The next day, you called the victim. At that time, she was on the phone to other youth group leaders, and they recorded the conversation. During the conversation, you repeatedly told the victim not to say anything. I find this is clear evidence of your guilty conscience at that time.
18 You sent a message on Snapchat telling the victim, and I quote, 'Just, please, you know the impact it will create if our secret got exposed to anyone'. Again, I observe your attempt to shift responsibility of the offending to the victim.
19 On 21 May 2020, a member of the youth group again asked you about the offending. You had previously denied it but on this occasion, admitted it. The conversation was recorded. As he was no doubt required to do by law and ethics, the member reported the admission to police.
Police investigation
20 You were summonsed on 5 October after you participated in an interview in February of that year. In your interview, you made some admissions. You indicated that you thought the victim was either 14 or 15 years old at the time. You agreed that you told her not to tell anyone.
21 You were summonsed on 5 October 2021, and you entered a plea of guilty at the first opportunity. You are, therefore, entitled to an appropriate discount for this early plea to reflect both the administrative advantage, and to reflect the importance of your admissions. Specifically, that the victim was not required to give evidence in court.
Objective seriousness
22 I now turn to the objective gravity of your offending. I note that the dates on the agreed facts material reflect that you were turning 20 in early April 2019, specifically, on 4 April. The events occurred some time between 1 April and the end of April, therefore, you must have been only days, or at the most, a week away from turning 20. According to the facts and timing of the event, the victim was 15 years and four months old; an age difference of at least four and a half years.
23 While offences such as this frequently relate to younger children, the age range is significant for a 15-year-old child. The age difference supports a finding of a version of power imbalance between the two of you - separate to your position as a leader of a youth group.
24 The report by Dr Barth describes it thus, and I quote:
'The fact that the complainant was an underage female known to him meant that Mr [Glover] had an increased sense of control over their encounters … he was able to engage in sexual behaviour without having to navigate the complexities of an adult sexual relationship'.
25 I also find that there was a small degree of physical coercion referenced in the facts. That is, when you put the victim in what is referred to as a playful headlock, and according to the facts, released her only to draw her down to lay beside you on the bed.
26 Whether the headlock was playful or not, it was still a form of physical coercion in my view. You knew that the victim did not want to involve herself in penetrated sexual activity because she told you so. The fact that she ultimately apparently acquiesced does not reduce the objective seriousness of the offending. That much is so when considering the differences in your ages, her admission that she was attracted to you, and the circumstances of the secrete assignation in your bedroom.
27 Immediately afterwards, you told her that she could not tell anyone what had happened because you would get into big trouble making her responsible for the consequences of your selfish and criminal act. These are all matters that increase the objective gravity of the offending, that is, the very mild physical coercion, and the power imbalance between you.
28 It is suggested that the fact you stopped and did not force her to go any further when she indicated she did not like what was happening is a matter in mitigation. Of course, I observe had you done so, you would have been charged with other offences, and you were not.
29 This is not a matter of mitigation. It is simply a lack of an aggravating circumstance. When considering mitigating matters, it is accepted that the offending continued for a relatively short period of time and I accept it was opportunistic.
Remorse
30 I turn to the issue of remorse. For this offence, you expressed to Dr Barth that you ‘felt a real connection’ with the complainant and that ‘she seemed so mature'. You further stated: 'I'm distraught [that] this offending has hurt so many people'. Nowhere do you express any acknowledgment of the detriment to the victim notwithstanding the fact that a copy of the victim impact statement had been made available to you.
31 You have, by this very serious sexual offence against a young person, unintentionally or intentionally hurt her. Up until you were prompted by the court, you did not acknowledge that your behaviour had primarily hurt the victim. Your recent letter written, which I have a copy of, is a good start, but still somewhat self-focused.
32 To my mind, however, this self-reflective document acknowledges very little in terms of accepting responsibility and the harm you have caused to the victim. To some extent, it speaks of the consequences specific to you.
33 You were four and a half years older than the victim who was still less than 15 and a half years of age. Although you were not in a position of authority to her directly, you were, as a result of your position in the youth group, a person of respect in that organisation. You took advantage of that and the victim’s apparent regard for you.
34 The victim impact statement sets out the normal responses of a victim of such a crime. It is she who has carried the fear and shame of this offence being committed against her. She was fearful of you, she was fearful of others and she was fearful of being judged by her friends and her family. You put her in an impossible situation.
35 Your lack of real acceptance of responsibility for the consequences of your behaviour, notwithstanding your plea of guilty, is of concern to the court. Your interview with the CCO report writers still contains your claim that the act of the victim performing oral sex on you was somehow her idea, apparently, without much input from you. If it had, indeed, happened this way, and this is not included in the prosecution facts, but if it had happened this way, your obligation would have been, of course to redirect the conversation and not even contemplate that it was an idea worthy of consideration.
36 It is noted that the plea was not disputed, except in the conversation with Corrective Services, and I acknowledge that. I do not know why it was reported in this way. Although I must note, in terms of the proposition of you and the victim talking for some time, it is a proposition that is hard to accept.
Personal circumstances
37 I now turn to your personal circumstances and background. You are now 23 years of age. You have, as I have observed, no prior convictions. It is reported that you have no substance abuse issues, nor apparently any other indications of antisocial behaviour. These are all factors in your favour and they militate against an increase in the risk of offending in general.
38 The number of documents entitled Peer Assessment indicate that you contribute greatly to your community through your involvement in the youth group. Each of your referees refer to you as being a positive, humorous and engaging person. You are apparently looked up to by your peers.
39 Your family are fully aware of your offending and they are reportedly supportive. You were a high academic achiever and you have now graduated with a Bachelor of Business majoring in marketing. You have expressed a desire to undertake a doctorate in that area and work for international companies. You are currently employed in sales, I am told, and in the next two years or so, have a desire to take over the mortgage repayments from your family in order to assist them.
40 I have had access to the report by Dr Barth prepared on your behalf during the course of his two interviews with you and the evaluation process. The report writer familiarised himself with the facts set out in the prosecution opening.
41 Dr Barth indicated that you impressed as being an articulate and intelligent young man, however, your capacity to reflect on your emotions and subjective experiences were not, as he reported, highly developed. He observed, therefore, that some of your discussions were superficial.
42 He observed a functional family life with no unusual features in your physical, emotional or sexual development. Notwithstanding the current charge, you have denied any engagement with child abuse material.
43 You reported a history of anxiety and insecurity, especially around female peers. You report that this experience has worsened after your arrest for this matter.
44 You have what appears to be appropriate concern for your future and distress relating to this sentencing hearing. Your concern, at one level, appears to be focused on the consequences for you of this offending, and the consequences for your employment in the future.
45 It is observed by Dr Barth that your symptoms of anxiety are not out of proportion to an individual in your situation. However, psychological intervention is recommended.
46 I observe that you have undertaken to seek mental health assessment via a GP referral, and your counsel has confirmed this today. This ought to be a requirement of supervision and is understandably recommended in the CCO Assessment Report.
47 Your cognitive functioning is said to be normal, however, your emotional intelligence is reported to be considerably less developed. It is reported that you have a limited understanding of the normative emotional and sexual development of teenage females which led, apparently, to you being of the view that the victim was consenting to the behaviour with you.
48 Your self-report to the CCO report writers indicates that, notwithstanding your current predicament, you still believe this. It is difficult to see how you could be of this view. You believed that she was only 14 or 15 years of age and that she did not want to indulge in sexual activity with you. This remains a concern.
49 Dr Barth concludes that while your interpersonal and sexual adjustment is not explicitly disordered, there are, he reports, problematic features which require ongoing psychological intervention. He recommends that this intervention be implemented at the earliest opportunity. The CCO report writers seem to endorse this.
50 I consider this to be an urgent and very important requirement. For the reasons outlined in his report, Dr Barth assesses you, at this stage, to be at a low to moderate risk of sexual recidivism.[3] The report writer acknowledges the limitations of the Static Risk Assessment as a tool. He indicates that you present with some relevant risk factors, including your immature approach to intimate relationships. His opinion includes an observation that the offending did not involve concompetent violence. While this is true, I note a degree of physicality as referred to above.
51 The playful headlock no doubt reinforced the greater strength that you had over the victim. No more was required. Dr Barth observes that the most significant dynamic risk factor is your lack of insight into your offending and your apparent cognitions regarding your view of the victim’s promiscuous sexuality.
52 Again, you adopt the position of blaming the victim for your actions. This takes the court's consideration again to your lack of remorse and the fact that you have never expressed an acceptance of responsibility for your behaviour.
53 The referees who expressed support for you expressed sympathy for you, but none noted that you had not accepted any responsibility for your behaviour. I am sure that had you done so, such an indication would have been given and included in their letters to the court.
54 I assess your level of remorse to be superficial. Dr Barth is of the opinion that in order to reduce your risk of re-offending, the comprehensive assessment of your sexual behaviour and adjustment is necessary, and he recommends immediate enrolment in a sex offender treatment program which you must be mandated to attend.
55 He indicates that improving your ability to develop a more mature approach to obtaining healthy sexual intimacy with an adult female peer should form a prominent feature of any intervention. He is further of the view that you would benefit from treatment which addresses depressive symptoms and promotes coping skills.
56 I recommend that the report from the psychologist, Dr Barth, be given to those who will be supervising you in the future. It is, I find, a well-reasoned and thorough report.
57 The CCO report accepts the recommendations contained in Dr Barth’s report. It recommended an 18-month sexual offenders’ program alongside supervision and general mental health assistance. These recommendations are intended to reduce your risk of re-offending.
Appropriate dispositions
58 There is nothing in the psychologist's report which suggests there is any reason to make a finding of reduced moral culpability for your offending. Surprisingly - to me at least – the prosecution took the view that a custodial sentence was not an appropriate disposition for you.
59 I express surprise at that position, but accept it and I accept that at your age, an appropriate supervised Community Corrections Order with conditions to ensure that you reduce your future of re-offending by addressing all that is required will be of greater benefit to the community, and, of course, to you. The dubious benefit of an imprisonment sentence in these circumstances would only protect the community for a very short period of time and may well not assist you after that.
60 A strong sentencing consideration is the need to support your rehabilitation at your young age. You ought not consider, however, that this disposition is anything but a stern rebuke of your behaviour, and that a requirement that you comply very strictly with the terms of the CCO that I propose to impose. Failure to comply may result in a breach of that order and you being brought back to court to face re-sentencing in this matter.
61 Boulton's[4] case underscores the requirement that a CCO, in appropriate cases, can and should be seen as a serious option, provided that appropriate conditions are imposed which the sentencing needs of the court.
[4]Boulton v The Queen [2014] VSCA 342.
Sex Offender Registration Exemption Application
62 In addition, you have an application before the court that you ought not be included on the register of sexual offenders. I have read the application and supporting affidavit and heard submissions from your counsel and read their written submissions.
63 Counsel submits that rehabilitation is a strong sentencing consideration; that is true. Considering your age – between 19 and 20 when the offence was committed and your age now, that is a strong sentencing consideration. However, your age is the reason why an imprisonment sentence is not being imposed.
64 Counsel suggests that the submission that the court cannot find that your age was over 19 years has some basis. Counsel submits that the indictment to which you pleaded had an age range of four days over which you were 19 or under, and the remaining 20-odd days of which you were 20 or just turned 20.
65 It is submitted that you are, therefore, on those circumstances, eligible to apply for exemption because the court cannot find on the basis of the indictment that you were 19 years old and not over 19 years when the event occurred. That argument has some force. I do not propose to take the matter further.
66 I do propose to make a finding simply on that basis that in terms of the indictment, that you were not over the age of 19 years, therefore technically eligible to apply. However, you were at least 19 years and 11 months, and this to my mind is a consideration when deciding whether to exercise my discretion as to whether you should not be required to be on the register
67 Dealing with offences without conviction ought also require a consideration of perhaps special or somewhat unusual circumstances. Your age is but one consideration. I note that during the course of the month of April 2019, there is some information before the court that would suggest that there is very good reason to make a finding, at least on balance, that the event occurred after your 20th birthday.
68 That is not a finding that I make but is a relevant consideration when considering whether the application not to include you on the sexual offenders register should be granted or not.
69 In considering this and whether you should be convicted, or a conviction should be entered, other matters include the risk of re-offending and the circumstances of this offence. The circumstances of this offence are of concern to the court. It was at your home. The victim was three-quarters of your age. It was night time. You were a respected person in her world and you knew she considered you so.
70
I disagree with the submissions from your counsel that your risk of
re-offending is low in a general sense. She refers to the second reading speech of the legislation where it was noted that persons between 18 and 19 years of age could be considered for exemption if their risk of re-offending was very low.
71 That is not your position, sir. Your risk of general offending is low. Your current risk of sexual recidivism is low to moderate. It is expected to reduce if you undertake therapy. These are all matters that must be taken into account.
72 You are at the upper age range for the application to be made. The victim was very much younger. Your counsel further submits that recording a conviction against you and/or requiring you to be on the sexual offender’s register is something that may disproportionately affect your future. This submission fails to acknowledge the very serious nature and circumstances of the offending behaviour and your current lack of insight into the consequences of your offending.
73 The sexual offenders register, therefore, has a purpose. That purpose is to ensure that the community is protected from offenders such as you. I accept that your risk of re-offending is expected in the future to be at a low level, provided you learn from the programs you will undertake.
74 You state in your affidavit that you fear the potential restrictions on travel may affect your future. The easy answer to that is that provided you comply strictly with the supervision requirements and the therapy requirements, there ought to be no reason why that would be so. Registration, I repeat, is for the community’s protection.
75 It is accepted that you entered a plea at the first available opportunity, and for various reasons, you are entitled to a substantial discount as a result of that early plea. You have expressed some appropriate contrition in the discussions with your psychologist.
76 Had the matter proceeded to trial, I would have expected an imprisonment term of not less than 12 months to be imposed. Stand up please, sir, I am going to impose the sentence now.
Sentence
77 I propose to sentence you to a two-and-a-half-year Community Corrections Order with supervision. The conditions will include s 48D(3)(d) treatment and rehabilitation conditions. You are also to attend to your GP and seek a referral for psychiatric assistance and attend to same. Further, you will be required to attend programs to reduce re-offending pursuant to s 48D(3)(f). Lastly, s 48E supervision will be for such time as required during the two-and-a-half-year period of the CCO.
78 For reasons that I have given, I propose to record a conviction. For reasons that I have given, I do not propose to grant your application that you be exempt from the sex offender register.
79 Thank you, sir. If you sit down now. I have the supervision conditions ready to sign; they'll just be printed out. Now anything else?
80 MS BAXTER: Just one matter, Your Honour, and that's with respect to the standard sentencing regime, and I apologise if Your Honour has dealt with this, but I just want to make sure, so in terms of the Sentencing Act, s 5B, and s 5 of that Act, as part of its reasons under sub-s 4, a court must refer to the standard sentence for the offence and explain how the sentence imposed by it relates to that standard sentence.
81 HER HONOUR: I have referred to the standard sentence for that offence.
82 MS BAXTER: You did, Your Honour.
83 HER HONOUR: I have referred to the requirements and the consideration for standard sentence. I have referred to s 5B. What else would you like me to do?
84 MS BAXTER: Only in the sense how the sentence imposed by it relates to that standard sentence. I accept that Your Honour has - - -
85 HER HONOUR: I've taken the standard sentence into – and the maximum penalty into account as a guide.
86 MS BAXTER: Yes.
87 HER HONOUR: I've explained what the standard sentence is. I have indicated why the standard sentence is not appropriate, what more do you want me to do?
88 MS BAXTER: No, Your Honour. Thank you.
89 HER HONOUR: All right. Thank you. Ms Khan?
90 MS KHAN: Nothing, Your Honour.
91 HER HONOUR: All right. Yes. Do you want to assist your client sign the documents?
92 MS KHAN: Yes, please, Your Honour.
93 HER HONOUR: Thank you very much. Take your time with him; it needs to be explained.
94 HER HONOUR: To confirm, in addition, you'll be required to report to the Sunshine Community Corrections Services no later than Monday.
95 MS KHAN: Yes, Your Honour.
96 HER HONOUR: Yes, either today or Monday - for the supervision to commence. You will be given further details then. I will sign that now.
97 OFFENDER: Thank you, Your Honour.
98 HER HONOUR: Thank you. All right. So I've signed the CCO, I've signed the sex offenders registration. Anything else?
99 MS KHAN: Nothing further, Your Honour.
100 HER HONOUR: All done. Thank you very much. Thank you for your submissions, counsel, and your promptness in getting them to me so I could consider them before today. We'll adjourn now.
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1 Dr Barth is of the view that this may be reduced to a low risk if you engage in long term therapy.
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