Director of Public Prosecutions v Gordon
[2017] VCC 1930
•15 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-02191
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RADHIKA GORDON |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 November 2017 | |
DATE OF SENTENCE: | 15 December 2017 | |
CASE MAY BE CITED AS: | DPP v Gordon | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1930 | |
REASONS FOR SENTENCE
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Subject: Criminal Law - Sexual Offence
Catchwords: Sexual Penetration of a child under 16 years
Cases Cited:R v Clarkson (2011) 32 VR 361, Adamson v R [2015] VSCA 194, Boulton v The Queen (2014) 46 VR 308, DPP v McInnes [2017] VSCA 374
Sentence: Community Correction Order for 30 months and Sex Offenders Registration for 15 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Henderson for the plea Mr N. Donaghy for sentence | Office of Public Prosecutions |
| For the Accused | Ms A. Beech | Stary Norton Halphen |
HER HONOUR:
1
At the outset, I advise that I am using a pseudonym for the name of the complainant in these reasons. The complainant will be called Drew Cantrell.
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]. That is the reason for the use of pseudonyms.
[1] Section 4 Judicial Proceedings Reports Act
2 Radhika Gordon, you have pleaded guilty to a charge of sexual penetration of a child under 16 years, representative of five occasions. This is an offence with a maximum sentence of ten years’ imprisonment. As I will explain later, in the unusual circumstances of this case, I will not be sending you to prison.
3 I sentence you on the basis of the Prosecution Opening[2], which is an agreed summary.
[2] Exhibit A
4 In brief, you met the complainant, Drew Cantrell, in 2015 through the involvement of both of you in a youth theatre group, where the majority of the group’s members were over 18. You were aged 20 and Drew had his 15th birthday in June of that year. You and Drew became close friends and spent time together outside of the theatre group, including at his home.
5 Drew told police that he thought most people considered him to be 17 or 18. You were considered by Drew’s father to be quite immature (as a 20 year old), and around the same maturity level as Drew.
6 Drew told police that you said you had feelings for him but had stopped them when you found out he was 15. On 1 October 2015, you drove Drew home and, after stopping the car on the way, you told him that if you were 15, you would date him. Drew then began kissing you, and he told police you were surprised, but then "went for it". You removed each other’s clothing and when Drew asked “Are we going to take it further?”, you said yes. Drew obtained a condom from his own bag, where he had kept a box for months as ‘a hopeful 15 year old', and sexual penetration took place. That is the first occasion relied on by the prosecution to establish your offending.
7 On 6 October, Drew was home from school as he was unwell. However, he contacted you and arranged to meet up. In your car, Drew again began kissing you, and again sexual penetration occurred. That is the second occasion relied on by the prosecution.
8 The next day, you and Drew arranged to meet. Again, in your car, Drew began kissing you, and again sexual penetration occurred. That is the third occasion relied on by the prosecution.
9 Shortly after that, you and Drew left a rehearsal together one evening in your car. This time, you began kissing him, and sexual penetration took place. That is the fourth occasion relied on by the prosecution.
10 A few days later, around 13 October, again you left a rehearsal, went together in your car, and sexual penetration took place. That is the fifth occasion relied on by the prosecution.
11 During this time, you contacted each other through Facebook and your messages make it clear that you knew he was underage, and that what you were doing, as the adult, was an offence. Drew’s father found the Facebook messages, and the police were contacted.
12 Any sexual activity by an adult with an underage person is serious. However, as with all offences, there are different levels of gravity or seriousness, depending on a range of circumstances.
13 To distinguish between cases of different levels of gravity, I must consider the nature and extent of the offending conduct, its frequency and duration, and the circumstances in which it occurred. In your case, the offending involved penetration, which is the most serious form of abuse of a child; a condom was used on each occasion; your offending involved five occasions and occurred over less than two weeks; and you were aged 20 while Drew was aged 15.
14 Although you were, and are a young person, you were and are an adult. There is a difference of five years in age between you and Drew. While Drew was apparently willing to become sexually involved with you, his motivation is irrelevant other than as a background circumstance to the offending. It is irrelevant because the purpose of this law is to protect children, including from their own motivation when they are, by law, too young and socially immature to understand their motivations and deal with the consequences that may flow from sexual activity. As you were the adult, it was your responsibility not to engage in any of that behaviour with an underage person.
15 I did not receive a statement from Drew about the impact on him, as he declined the opportunity to provide a statement about that. 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[3]. This is something that you are well aware of from the abuse you suffered as a child and teenager, which I will come to later.
[3]R v Clarkson (2011) 32 VR 361, 368 [26], 371 [33]; Adamson v R [2015] VSCA 194 at [56]
16 While I have no further information as to the level of harm suffered by Drew, neither do I have any material rebutting the presumption that he was or will be, harmed.
17 What I do have are his remarks in the VARE, as summarised in the Prosecution Opening, that he instigated the sexual activity on the first three occasions, but then he wanted to do it less and less, and you instigated the sexual activity on the last two occasions.
18 The prosecution submitted that there was a breach of trust because your relationship grew out of a youth theatre group dealing with youth issues, where the people involved were potentially vulnerable. Counsel on your behalf disputed that there was a breach of trust, submitting that you were of equal maturity.
19 To assist me in making a finding about whether there was a breach of trust, I have read the entire VARE conducted by the police with Drew. On the basis of that and all the material provided to me by both counsel, including that Drew’s father considered you to be of the same level of maturity as Drew, I am not satisfied that you were in a position of trust, power or influence over Drew, and therefore I am not satisfied that you were in a position to breach any trust.
20 Counsel on your behalf also submitted that your actions towards Drew did not constitute grooming and were not predatory or manipulative, but arose out of your own issues including lack of self-esteem, and impaired sexual and personal adjustment. For the reasons that I will come to when I consider your background, I accept those submissions.
21 Taking all of these features into account, I am satisfied that your offending falls at the lower end of the range of seriousness for this type of serious offending.
22 Turning to the factors that I must take into account in your favour, the first of these is the fact that you have pleaded guilty, and indicated at an early stage your intention to do so. You are entitled to have that taken into account in your favour and I do. Because of your plea, the community has been spared the time and cost of a trial, and Drew, still aged under 18, has been spared the ordeal of giving evidence in a trial. As a result, I can tell you that the sentence I intend to impose is less than would have been imposed had you been found guilty after a trial.
23 I also accept that your plea of guilty in court indicates remorse for your actions, together with other expressions of remorse in the material I have received.[4]
[4] Exhibit 2
24 Next, I take into account that you have not committed an offence before, and as a result you will be sentenced as a person of good character. I note, and also take into account, that you have not re-offended since, and I have also noted the references of people who attest to your good character.[5]
[5] Ibid
25 Next, I take into account that you were a young offender at the time, and that there was a considerable delay of 12 months between the police interviewing you and charging you. The original plea date was April this year, but that was adjourned to November due to a change in your legal representation. The end result is that I am sentencing you more than two years after the events.
26 Next, I take into account your personal circumstances and background, which I find have had a profound impact on you.
27 You have just turned 23. You are the only child of your parents, and your father committed suicide when you were two years old. You have never had contact with his family.
28 Shortly after his death, you and your mother travelled to India, where your mother, who is of the Hare Krishna faith, partnered with an Indian man. They eventually had three children. Between 1997 and 2001, when you were aged about three to seven years, you and your mother spent half the year in India and half the year in Australia. You began kindergarten in India.
29 Significantly, from 2000, when you were aged about six, two of your mother’s partner’s brothers began sexually abusing you during the periods you were in India. Their mother physically abused you. The one bright spot in 2000 for you was that, in Australia, you began doing theatre in the local community, which became a passion for you.
30 You had a period of reprieve from the sexual and physical abuse between 2002 and 2009 when your mother lost contact with her partner and you, your mother and your half siblings remained in Australia. You had commenced primary school in Australia in 2000, but had only half a year of schooling here each year until 2002. When you were at school here, you were bullied, including when you moved to secondary school. You had difficulty learning basic literacy and numeracy skills and felt alienated from the other students. You also felt isolated and detached from your family.
31 I pause to note that your mother has been attending court to support you and just at this point while I am dealing with these difficult matters she has left the court.
32 In 2009, your mother re-connected with the same man, and you returned to India with her again for three months. You were now aged about 14 years. You were sexually assaulted again; this time the abuse escalated to sexual penetration. You apparently told your mother what was happening but report that she did not believe you. You began self-harming during your teenage years and report having a number of what you describe as ‘mental breakdowns’.
33 Back in Australia, in 2010, the conflict between you and your family increased and you left home on several occasions, ultimately being placed with a foster family by the Department of Health and Human Services. Eventually, after another attempt at living with your mother, you began living at your then boyfriend’s home, and his family became your permanent foster family, with whom you still live. In 2011, you changed schools to begin Year 11, but did not cope, and ultimately left school at the beginning of that year.
34 I note that your mother has returned to court.
35 By 2012, you broke up with your boyfriend but remained living with his family. You were struggling with depression and this has continued to the present time. Despite this, in 2013, you were working part time as well as studying in theatre production and events. In 2015, you completed your Diploma and began a Bachelor of Performing Arts at Deakin University. However, your mental health declined, and by September you were struggling with your studies, and your depression worsened. In October, you committed the offence.
36 On 14 October, the day after the last occasion of sexual activity with Drew, you went on a holiday with your family, and the day after you returned to Victoria, on 20 October, you resumed your relationship with your former long term boyfriend. He remains your boyfriend and is very supportive of you, as he has always been.
37 You were spoken to by police on 27 October 2015, but as I said earlier, it was almost 12 months before the charges were laid. In 2016, you dropped out of university, had another mental breakdown to such an extent that you could barely leave the house, but you did begin treatment. You are now on a Mental Health Plan through your GP, are prescribed antidepressants and have been referred to a psychiatrist.
38 Because of the reactions of people connected with the theatre group that you and Drew were members of, you left that group, and despite your passion for acting and your dream of developing a career in that industry, you have ceased your studies in that area, due to your escalating mental health issues. You feel ostracised from the local theatre community. Your boyfriend and other friends describe in their references the significant impact the criminal process has had on you. Importantly, you are well supported by your friends, and, despite your differences over the years, supported by your mother, grandmother and family, who were in court and supplied a reference. All of this support is vital for your rehabilitation.
39 I received a report from Dr Barth, psychologist, dated 23 October 2017.[6] His comprehensive professional opinion is found at paragraph 43. I accept all of that, but I will not read it out, but instead will attach it to these reasons as Appendix A.
[6] Exhibit 3
40 I find that the negative impacts of your dysfunctional childhood and, in particular, the sexual abuse you have suffered, lower your moral culpability for this offence.
41 Dr Barth outlined some specific treatment recommendations at paragraph 45 including mental health treatment, sex offender treatment, preferably with a female psychologist, substance abuse treatment and vocational training. I will include that paragraph in Appendix A. Through your counsel, you have expressed enthusiasm to engage in treatment to understand your behaviour and prevent a recurrence of an offence such as this.
42 On balance, on the basis of all this material, I consider that, if you undertake all of this treatment, your prospects of rehabilitation are good, and you are unlikely to reoffend again. Dr Barth assessed you as being at moderate risk of sexual re-offending, but thought this may be reduced by your active participation in offence specific treatment.
43 As well as those matters personal to you to which I have referred, including your rehabilitation, I am of the view that I must also take into account the need for general deterrence, even though statistically less females sexually offend against children. I consider that my sentence of you must seek to deter others from committing similar offences. This is an important sentencing objective in a case involving sexual offences committed against an underage person. Because of your previous good character, and your prospects for rehabilitation if treatment is undertaken and is successful, the need for my sentence to deter you from re-offending is less important, but still has a role to play.
44 Before I turn to the sentence, there is one other matter I must deal with. As a result of my sentence today, you become a registrable sex offender. As the offence was committed against a child and involves penetration, it is a class one offence. You will be required within seven 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.
45 Turning then to the sentence, your counsel submitted that a community correction order was an appropriate disposition in your case, and would meet all the sentencing objectives. You were assessed and found suitable for such an order.
46 The prosecutor on the plea submitted a community correction order was within the range of available sentences.
47 I can only impose a sentence of imprisonment if I consider it is the only appropriate disposition. As I have said, I accept Dr Barth’s opinion, and that enables me to find that in this case, in view of the objective gravity of the conduct as I have outlined and your personal circumstances, a properly-conditioned community correction order of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation, even in a case where the offence is one which usually attracts a medium sentence of imprisonment[7].
[7] Boulton v The Queen (2014) 46 VR 308, [131]. See also APPENDIX 1: COMMUNITY CORRECTION ORDERS: GUIDELINES FOR SENTENCING COURTS: Boulton, 377 [25]; DPP v McInnes [2017] VSCA 374
48 I also accept Dr Barth’s opinion that imprisonment would be a significant risk for your mental health deteriorating further, and that your personal issues would make you a particularly vulnerable prisoner.
49 Therefore, if you agree, I propose to release you on a community correction order for 30 months.
50 Although the terms of a community correction order were probably explained to you at your assessment, that was some time ago, and I need to explain them now.
51 The 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 the State of Victoria without the permission of Corrections Victoria; and must comply with any direction given by Corrections Victoria.
52 I will also order that you comply with other conditions during the period of the order. These other or special conditions are:
· you must be under supervision;
· you must perform 150 hours of unpaid community work;
· you must undertake assessment and treatment for mental health conditions;
· you must undertake assessment and treatment for drug use; and
· you must undertake a Sex Offender program, or any other program to reduce offending as directed by Corrections Victoria.
53 I will also order that any hours of treatment may be counted towards your unpaid community work. It may well be that the mental health treatment that you are undertaking voluntarily will be counted towards your treatment hours. That is something for Corrections Victoria to discuss with you.
54 So, Ms Gordon, do you agree to being released on a community correction order with those conditions attached? Sorry, you just have to say yes or no.
55 OFFENDER: Yes.
56 HER HONOUR: Thank you. If you are ill or there are exceptional circumstances, this order may be suspended for a period of time. If your circumstances change, the court may change the order or cancel it. In either case, you must tell the Community Corrections office you will be attending, and I recommend you also get legal advice.
57 Importantly, if you do not complete any condition of this order, including by committing other crimes, you will be brought back before me to be re-sentenced on the original charge and also to 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 imprisonment. Do you understand what will happen if you do not complete this order including by re-offending?
58 OFFENDER: Yes.
59 HER HONOUR: 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 Offenders Registration Act. The second is to show that you agree to abide by the conditions of the community correction order. Ms Gordon, you can come out of the dock and your lawyer will assist you with these forms. Yes, just have a seat behind Ms Beech.
60 I should just add that I have included the drug treatment even though you do not think that that is a problem for you. I think that it is something that should be considered.
61 So I have signed that order. The formal order of the court is that on the charge of sexual penetration of a child under 16 years, you are convicted and released on a community correction order for 30 months with the conditions I have just outlined.
62 Finally, 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 term of imprisonment for three years with a minimum of 12 months.
63 Yes, Ms Gordon, do you have any questions? All right thank you. Well I thank counsel for the attendance and assistance. Any other orders required?
64 MR DONAGHY: No thank you, Your Honour.
65 MS BEECH: No thank you, Your Honour.
66 HER HONOUR: All right thank you. I will adjourn until 10.30 for the next matter.
Appendix A
43. Ms Radhika Gordon is a 22-year-old woman who participated in a psychological assessment for her upcoming plea. As a result of a detailed analysis of her personal history, mental status and her personality and sexual adjustment, the following conclusions were reached:
1)The most salient features of Ms Gordon’s mental status when I evaluated her were significant depressive and anxiety-related symptoms. She has been an emotionally vulnerable person since her reportedly turbulent and abusive childhood and has experienced noteworthy periods of mood disturbance throughout her life. Her current legal matters have exacerbated her distress and sense of helplessness. Of primary concern, she reports ongoing suicidal ideation.
2)Ms Gordon’s current symptoms are sufficiently severe to warrant a diagnosis of ‘Adjustment Disorder –with Mixed Anxiety and Depressed mood’ by DSM-5 criteria.
3)A comprehensive review of Ms Gordon’s personality adjustment indicated significant dysfunction. She is a very immature woman who experiences significant conflict between her need to assert her independence with a strong desire to feel close and connected with others. She has experienced intense mood swings and feelings of insecurity throughout her life. She has either coped with her interpersonal stressors by becoming overly hostile or withdrawing completely. Hence, her social skills are underdeveloped and she has considerable difficulty developing intimate relationships.
4)Compounding matters, Ms Gordon has a diffuse sense of her own identity and has had significant problems transitioning from adolescence to adulthood. Hence, she continues to lack a solid trajectory in her life which has only intensified her low self-worth and sense of alienation from others.
5)Ms Gordon’s personality adjustment and the associated traits have caused her considerable difficulty throughout her life. I am of the opinion that these traits are sufficiently severe enough to warrant a diagnosis of ‘Borderline Personality Disorder’ by DSM-5 criteria.
6)Ms Gordon’s sexual adjustment is a reflection of her emotional immaturity and interpersonal dependency. In regards to the current offending, she identified with an underage male who she viewed as an ‘equal’ despite their age difference. She viewed him as being capable of initiating and consenting to their experiences and hence, was able to justify her behaviour with him at the time. Ms Gordon’s insight into her own sexual adjustment and the offending behaviour remains poor.
7)Ms Gordon has a lengthy history of abusing cannabis. Her use has escalated in the past six months or so due to the stress of her impending legal matters. She admitted that she is currently using cannabis on a daily basis as a dysfunctional coping mechanism to alleviate her emotional distress. Ms Gordon’s drug use is unequivocally problematic and is sufficiently intense to meet diagnostic criteria for ‘Cannabis-Use Disorder’ by DSM-5 criteria. Her use would currently be specified at the ‘Severe’ level. Extensive substance abuse treatment is unequivocally warranted.
8)There is a limited research base regarding the risk of recidivism for female sex-offenders. However, based on current best practice for risk assessment, it is likely that Ms Gordon poses a ‘Moderate-Risk’ of sexual recidivism. Provided she participates actively in offence specific treatment her risk of recidivism may reduce.
45. In regards to Ms Gordon’s specific treatment needs, the current assessment identified the following components as being essential:
·Mental-Health Treatment. Ms Gordon requires sustained psychological treatment to assist her in processing her reported traumatic sexual abuse. Treatment should also include a prominent focus on developing healthier coping and mood management strategies to enhance her ability to deal with her depressive and anxiety-related symptoms with more adaptive behaviours. Finally, treatment should focus on enhancing her poor self-esteem and developing her basic social skills.
·Sex-Offender Treatment. Sex-offender treatment should focus on assisting Ms Gordon to gain insight into the factors which motivated her offending, enhancing victim empathy and psychoeducation regarding the normative sexual development of underage males. Psychoeducation on the development of healthy adult relationships and prosocial sexual behaviour should be incorporated. When considering the complexity of Ms Gordon’s personal history, treatment should be implemented on an individual basis and, preferably, with a female psychologist.
·Substance Abuse Treatment. Treatment should include a lengthy period of highly intensive and closely structured/supervised detoxification program with regular urine screen testing to enforce prolonged abstinence. There should be clear consequences for any noncompliance on Ms Gordon’s part. Advanced relapse prevention training should be included to allow Ms Gordon to develop solid cognitive and behavioural strategies to achieve abstinence.
·Vocational Training. Intervention which assists Ms Gordon to re-join the workforce and develop her career prospects would be very beneficial.
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