Director of Public Prosecutions v Graham

[2021] VCC 182

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-20-00221

DIRECTOR OF PUBLIC PROSECUTIONS

v

LACHLAN GRAHAM

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	26 February 2021
DATE OF SENTENCE:	26 February 2021
CASE MAY BE CITED AS:	DPP v Graham
MEDIUM NEUTRAL CITATION:	[2021] VCC 182

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Sonnet	Office of Public Prosecutions
For the Accused	Mr L. Richter	Matthew White & Associates

HIS HONOUR: 

1Lachlan Graham, on 29 January 2021 the court indicated that you would not be imprisoned since you have pleaded guilty to a charge of sexual penetration of a child under the age of 16 which was a rolled-up charge.  You have pleaded guilty on arraignment this morning.  The offending behaviour can be summarised as follows.

2The allegation or the charges, the offending, is that on two occasions in the month of June 2017 you sexually penetrated the victim.  The victim was born in October 2003 and thus was 13 years and eight months at the time of the offending.  You were born on 21 August 1997 and you were 19 years and 10 months.

3You had first communicated with the complainant on a popular social media platform.  You falsely said to her in that communication that you were 16.  The complainant told you that she was 13.  Frequent conversations between you had sexual connotations.  The first time the two of you met up was in May of 2017.  This was in the regional town close to where the complainant lived.  You travelled there by train from Melbourne.

4You met a number of other times and on the fourth occasion you met up you had sex with the victim.  The victim said at that time, the first time, it was hurting her but you continued.  At the next meet up, you and the victim went to her house and again engaged in sexual intercourse.  When you turned 20 on 21 August 2017, the victim discovered your true age.  The relationship was ended by her a few months late in October or November of 2017. 

5Your behaviour thereafter was concerning.  The victim outlined in her video taped recording to the police what had happened.  That video recording occurred on 23 January 2018.  You were interviewed about these matters by the police at the end of that year, December 2018.  In that interview you made a number of false denials.  You were not in fact charged with these offences until June of 2019.  The trial was listed to be heard in April of 2020 but adjourned due to the suspension of jury trials as a consequence of the COVID-19 pandemic.  A series of case management hearings then occurred, leading to a sentence indication hearing that I have spoken of, in late January 2021 and then on to today.

6I have received and read carefully the victim impact statements from the victim and her mother.  They reveal the considerable harm caused to the victim, though it would appear after a number of much harder years that things may be settling or becoming a bit better for the victim, but premature engagement in sexual activity does leave a lasting impact on victims.  It is only hoped that the victim will continue to move forward in respect of her life.

7What can be distilled from all the facts and circumstances is the following: (a) that the age gap between you and the victim was significant; secondly, there is no issue that you have an intellectual disability recognised under the Disability Act.  Given that you have an intellectual disability and in the expert opinion of those who have assessed you, your level of maturity and capacity to understand and make adult-type decisions was much lower than your chronological age but I cannot overlook that the victim was 13 years and eight months, well below the age of consent.

8The third matter is that although you and the victim were in a relationship of sorts, it was not of the type that the Court of Appeal in the important case of Clarkson[1] described as being a loving, committed, boyfriend and girlfriend type relationship, which meant that the sexual offending in those situations would be seen at the lower end of the spectrum.  The gravity of this case could not be described in that way.  Self-evidently, there was no overt exploitation or considerable power imbalance such as the other examples given in Clarkson of a teacher and a student, or a stepfather and a child.

[1]Clarkson [2011] VCSA 157

9These offences though are inherently serious.  The law takes very seriously the protection of children from engaging in sex too early.  Those who exploit children must be denounced, their behaviour denounced, and them and others deterred.  However, this offending is not such a grave example of this crime such as to require nothing else other than imprisonment.  As I said at the sentence indication hearing, the discretion based on the synthesis of all factors remains a wide one.

10You were 19 at the time, turning 20, when you offended.  The delay in charging you and then the added delay due to the pandemic means that you are now 23 and a half years old – in fact, getting closer to 24.  You are still a young man and all the sentencing considerations that attach to sentencing young offenders are highly relevant.  What is added is the mitigatory weight of what is relatively speaking considerable delay.  I take that into account that it has been hanging over your head for a significant period of time and that, too, of the complainant, and that is regrettable.

11Your plea of guilty in these circumstances of delay and the pandemic is a matter of very significant weight.  Had this matter gone to trial, not only would the complainant have to endure the added trauma of giving evidence but there is, given the considerable strain on the criminal justice system, no certainty as to when this case would be done given the backlog.

12Briefly mentioned but fundamental to my sentencing discretion is that you have an intellectual disability.  As Dr Ong in his report wrote, you have a quite well documented mild intellectual disability.  It was discerned early in your life.  Accordingly, there is a statement of intellectual disability pursuant to the Disability Act.  This inherent lifelong burden is added to by the effects of a childhood and adolescence that were, to use Dr Ong's words, marked by significant impoverishment and disadvantage, with over 40, perhaps even 50, placements in different homes due to your parents' inability to look after you.  The expert opinion from Dr Ong and the psychologist, Dr Dunn, all agree that your intellectual disability adversely impacts on your capacity to make rational, mature, considered decisions. 

13In terms of your personal circumstances, including your intellectual disability, I refer to the very helpful disability overview report prepared by your current case manager, Ms Vella.  She wrote that you have been diagnosed with an intellectual disability which was recognised under the Act in May 2004.  You have also been diagnosed with attachment disorder, attention deficit hyperactive disorder and mild Tourette's Syndrome.  The deficits are across all areas of verbal comprehension, perceptual reasoning, working memory and simple processing.

14It was, as I have said, the opinion of the psychologist who has assessed you in the past that your intellectual disability impacts on your own ability to make rational choices.  Your strengths are in the area of non-verbal reasoning and you require visual material in conjunction with verbal, written and auditory material to learn new skills.  There are weaknesses in your memory span making it difficult for you to concentrate, attend to and stay on task.  You require simple, straightforward language and repetition of new skills.

15As to your background or your personal history, that was put succinctly by
Ms Vella in these terms.  You are one of four children, but you have five older halfsiblings as well.  Child Protection was involved with all the children at different stages.  There was delay in your milestones, particularly with your speech, which didn't develop until you were four.  You lived at first with your mother in Swan Hill, but very unfortunately she was murdered in 2004.  After her death your father took over, but his attempts were inadequate.  He just could not manage all the particular needs that all the children had and you and your siblings were placed with other members of the family but ultimately placed into various government and external agencies in out of care settings.  Many, as I have said, of these out of care placements failed, perhaps up to 50, it is said by Ms Vella.

16There was obviously great instability in your care and behaviours of concern and significant emotional difficulties emerged and they were major contributing factors to the failure of the out of care placements and it became a cycle.  After you were no longer eligible for out of care assistance, in 2015 you experienced accommodation instability, moving between private rentals, rooming houses, and homelessness.

17As to your mental health, it is summarised that you were diagnosed with post-traumatic stress disorder in 2008 at a very young age, displaying suicidal ideation, and you were provided with some counselling to address those issues.  There has been, as I have said, a diagnosis of attention deficit hyperactivity disorder, with some medication provided, but that has been discontinued.

18Just after the plea, you were assessed or consulted with a community forensic disability health service and seen by Dr Thomas, a consultant psychiatrist.  He recommended the most beneficial form of treatment for you was psychological intervention and that any medication could be considered once psychological intervention was tried.  He considered the best approach was through skill-based programs with community psychologists.  I note that you have been referred to a psychologist in Melbourne, appointments have been arranged, and it is hoped that this can continue.

19You have been placed on a community corrections order by another judge of this court, so the report of Ms Vella and from the corrections officer also included how you were going on that order.  What is clear is that for May and June 2020 you improved your engagement with the services and have made good steps forward and this continues.  You have been transferred to the particular division there where you live, and you have commenced to engage with the supports that have been provided.  What is revealed is that you are responsive to phone calls, your mood is stable, and you are pleasant and you are forthcoming.  You have expressed willingness to complete the offence specific programs and what is required of you.  This is a significant step.

20What Ms Vella indicated was that on all the material, given the current assistance from the NDIS and the coordinated support through Disability Services and the Justice Plan, it looked likely and it was her view that a further Justice Plan and corrections order should be provided.

21There is in the end no dispute as to the relevance of the High Court decisions in Muldrock[2] regarding intellectual disability and Bugmy[3] regarding disadvantaged upbringing.  The only dispute really between the defence and the prosecution was the extent to which there should be moderation of punishment by reason of your intellectual disability and your significantly deprived upbringing.  It seems clear to me that your intellectual disability is causally connected to your offending in terms of your limited capacity to make considered decisions and to understand the consequences.  I consider the very important sentencing purpose of denunciation ought to be in this case significantly moderated because your moral culpability is that much lower due to your intellectual disability. 

[2]Muldrock [2011] HCA 39

[3]Bugmy [2013] HCA 37

22Moral culpability in these types of underage sexual crimes is a very important consideration.  In the circumstances of this offending which I described earlier and the circumstances of your intellectual disability, I am of the view that your moral culpability is low, thus denunciation is appropriately moderated.  Separately, the sentencing purpose of general deterrence which is usually paramount in these offences as the courts have an important role in protecting children generally and deterring others who might exploit them.

23However, as Muldrock and earlier cases relating to intellectual disability have made clear, someone with an intellectual disability is different such that it is not appropriate to use them as the vehicle for deterrence to others.  As I said at the sentence indication, I would not be comfortable if you were the one used as an example to others who are contemplating sexual abuse of children.  Thus, the very important or the usually very important sentencing purpose of general deterrence can be mercifully moderated in your case.

24It turns out, as I have indicated, that you pleaded guilty to some subsequent Commonwealth offences of grooming and sending and seeking images from children.  Judge Fox, experienced in the criminal justice system, an experienced judge now, sentenced you to a community corrections order with a Justice Plan.  The report from Ms Vella that I have referred to makes clear that you are participating well in that order, indeed benefiting from it.  Your counsel has provided me with a further submission that this provides greater confidence that a non-custodial sentence as I indicated I would impose. Your counsel's submission was that there could be greater confidence that this sort of sentence is likely to work or there is more likelihood based on the recent advancements that you will progress and learn, and the community will be protected from you into the future as you rehabilitate.

25Thus, the weight to be attributed to specific deterrence and the protection of the community, while important, must be seen in light of the solid steps taken and the guided rehabilitation that has occurred through 2020, most particularly of late.  You have, as indicated in the reports, solid accommodation having reestablished with your father.  There is an array of supports provided by the NDIS and through the Justice Plan and importantly, as I have indicated, there is a good professional relationship between you and all those who have and are working with you.  It is really important that you continue to cooperate and work with them, stay in touch with them.  I will emphasise that again when I come to the end of this sentence.

26It seems to me that the concept articulated in many sentencing decisions, including that of Verdins[4], that your enduring impaired mental functioning, that is your intellectual disability, requires the court to consider alternative dispositions than might otherwise be the case with serious offences such as this one is.  In short, imprisonment for this sort of crime would be expected in all but exceptional cases.  This case has clear and unique factors moderating the punishment aspects of sentencing such as deterrence, denunciation, and protection of the community.

[4]Verdins [2007] VSCA 102

27The reports from the Disability Services, from the Office of Corrections and the Justice Plan that I sought all state that you are suitable for a community corrections order with a Justice Plan.  In my view, that is a just and appropriate sentence.  I am well aware that the prosecution submitted that imprisonment ought to be imposed and I have considered carefully those submissions.  However, I consider that in this case the punishment of last resort, imprisonment, is not required to meet all the sentencing purposes.  Thus, applying the Sentencing Act as I must, in those circumstances I cannot impose a term of imprisonment and I do not intend to do so as indicated.

28I move to the sentence, Mr Graham.  A community corrections order with a Justice Plan can be for two years.  You are on a community corrections order for two years that is underway, but it seems to me that for this offending involving a 13 years and eight month old victim, different to the offences that Judge Fox dealt with. It is in my view appropriate that the community corrections order is one of the length allowed under the Act, that is two years.

29For committing the crime of sexual penetration of a child under the age of 16, a rolled-up charge, you are convicted and placed on a two-year community corrections order.  The conditions other than the core conditions of a community corrections order are that you are to be under supervision, that you will be placed on a Justice Plan and you are to do programs that are directed by the Office of Corrections.

30Those conditions, the supervision, the Justice Plan and programs, are things that you already understand and are on.  They will be explained again to you in detail.  The core conditions, the things that everyone on a community corrections order abides by, apply to you, and I will just run through them.  The first of them is important.

31You must not commit any offence that is punishable by imprisonment during the time that this corrections order is in place.  That is many, many offences, including breaching your sex offender’s registration requirements which I will come to.  So if you breach that by not telling them if you have changed your phone or if you get a tattoo or what might seem very minor matters that a magistrate might give you a fine for but it breaches this order.  So just comply with every requirement of you, both under the corrections order but under the sex offender’s registration as well.

32The other parts of the corrections order are just about cooperation.  You have to accept visits from the Office of Corrections, you have to tell them if you change your address or if you get a job or change your job.  You must report to them or start this order by contacting them within two clear working days, but
Ms Vella and others will help you through that process.  You just have to be in communication with them over the phone.

33You cannot leave the state of Victoria.  You cannot just go on a trip without telling them that you are doing that, and you have to abide by all their lawful directions.  You just have to cooperate and do as they ask.  They are trying to help you.  So they are the conditions.  Normally you would get a document and your lawyer would go through it with you.  We cannot do that because of the situation created by the pandemic, so what I say to you is this, Mr Graham.  With all that explained to you, do you consent, do you agree, to do the community corrections order with the Justice Plan?

34OFFENDER:  Yeah.

35HIS HONOUR:  I will note that on the order that you gave your consent orally in this hearing.  The other thing about this crime is given the age of the complainant and the nature of the offence you must again be placed on the sex offenders register.  I have no choice about it, it is mandatory, and the period of time is mandatory, it is 15 years and you are on it now. So that occurs.

36What happens is that you will be provided with documentation that indicates that you understand the consequences of not registering or not complying with it - that is, there are very significant consequences to you if you do not do it, it will end up in other offending, so you just have to stay in touch with all those that will manage your time on the sex offenders register.

37I would normally give you a document, you would sign it, and then I would sign it.  It is a strange situation.  I sign a document saying I have given you a document and you sign a document saying you have got the document, but you will be given the document online or printed out for you at some point of other.  Do you understand that?

38OFFENDER:  Yeah.

39HIS HONOUR:  Do you understand that having got that document, it is really what it says that counts and that is all about the responsibilities that you have and the consequences if you do not meet them, all right?

40OFFENDER:  Yeah.

41HIS HONOUR:  I will send the document off to the Chief Commissioner of Police because they then will take it up to manage you on the sex offenders register.  Do you understand?

42OFFENDER:  Yeah.

43HIS HONOUR:  All right, thank you.  Had you pleaded not guilty to this offence and been found guilty of it, I would have imposed a sentence of two years and six months with a non-parole period of 14 months.  I am not sure if there are any other orders but I will just ask and we will see what Mr Sonnet says.

44MR SONNET:  I am happy for my friend to go first.  There is just one issue, Your Honour.

45HIS HONOUR:  Yes.  What is the issue?

46MR SONNET:  It relates to the reporting period.  I am querying whether I provided Your Honour with the correct reporting period.  It's a reporting period of 15 years for this particular offence but as Your Honour has noted, he has the two convictions or findings of guilt in respect of, as I understand it, class 2 offences so the reporting period that Your Honour imposes is one for life.

47HIS HONOUR:  All right.

48MR SONNET:  That is under s.34(1)(c).

49HIS HONOUR:  So it is a finding of guilt subsequent to the imposition of a sex offenders register that has the effect of meaning that a subsequent order for sex offenders for offences that were prior elevates it to life; is that right?

50MR SONNET:  That's my understanding.  In the reporting period throughout the phraseology there is the word 'ever' so it talks about ever being found guilty, so from my understanding of the legislation that imports subsequent matters.   Can I indicate, Your Honour, my experience is that when the documentation is sent to the sex offenders registry it is always double checked and any issues are always brought back to both the Crown and obviously we bring it back to the court.

51HIS HONOUR:  Absolutely, and they have corrected me a couple of times and I want to get it right first if I can, so thank you for that.  What do you say,
Mr Richter?

52MR RICHTER:  Your Honour, I believe that to be correct at first blush, because I am pretty sure the aim of the Act is to capture multiple offending, it's not so much concerned with culpability, and therefore the fact that this offending predates the other and therefore the culpability is not exacerbated by the subsequent, that's not the concern of the Act, so I believe what my friend has said to be correct.

53HIS HONOUR:  I agree.  Mr Graham, where that leads us – sorry, Mr Sonnet, did you have more to say?

54MR SONNET:  No, Your Honour, I was just about to say the consequence of the legislation always leaves me feeling very uncomfortable, but I say no more.

55HIS HONOUR:  Mr Graham, what has just been discussed between the lawyers is that because of the earlier time that a judge put you on the sex offenders register that means that I have no choice but to put you on the register and the period of time is not 15 years, which I said, it is for life.  That will be explained to you by everyone, so that is where it sits and you have to understand that the period of time that you have to remain on the register is life.

56What I have not done in the community corrections order is indicate where you have to contact and which community corrections office we are dealing with, I just did not take that up.  Where is it?  Is it Moorabbin or something?

57MR RICHTER:  It's Werribee, I believe, but Ms Vella will correct me if I'm wrong.  I believe it is still Werribee.

58MS VELLA:  It is Werribee.

59HIS HONOUR:  All right, thank you.  So, the Office of Corrections that will be managing all this is Werribee and you have to contact them within two clear working days.  The order, that is the community corrections order, starts today.  Is there anything else required?

60MR RICHTER:  Not from me, Your Honour.

61MR SONNET:  Not from the Crown's perspective, Your Honour, thank you.

62HIS HONOUR:  Thank you very much for your considerable assistance. 
Mr Graham, that brings this matter in the County Court to an end.  You will be helped by Mr Richter and by Ms Vella so that you understand what I have done. What I have done though is to put you on a corrections order.  It may seem like it is hard to you, but it is actually quite lenient on you in a way, merciful to you, because most people facing this would go to gaol but I am not putting you in gaol.  So do the order, because if you do not do the order, if you do not do what you are asked to do and you just disengage and head away on your own or commit further crimes or something, you will come back before me and I will have little choice.  I can assure you; I can tell you for sure, you do not want to go to gaol.  That is not a place for you.  People who go to gaol are never the same, so stay out of trouble, do this order and move on, all right?

63OFFENDER:  Yeah.

64HIS HONOUR:  Thank you.  I will leave this, and if you need to speak to your client, take the opportunity, Mr Richter, but not much because you can get him on the phone.  Thank you.

65MR RICHTER:  Of course.  I might speak to Ms Vella quickly and I will ring him.

66HIS HONOUR:  Before you do, I might emphasise if it was not clear, the report received from Ms Vella was very, very helpful indeed and I am reassured that Mr Graham is in good hands.  Thank you.

67COUNSEL:  As Your Honour pleases.

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