Director of Public Prosecutions v Gray
[2019] VCC 700
•20 May 2019
kjun
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-19-00032
Indictment No: J12755455
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AARON GRAY |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 May 2019 | |
DATE OF SENTENCE: | 20 May 2019 | |
CASE MAY BE CITED AS: | DPP v Gray | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 700 | |
REASONS FOR SENTENCE
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Subject: sexual penetration of child under 16, care sup or authority. Representative charge.
Note: references to names, geographical locations of pizza outlets and residences have been removed to avoid identification of the victim
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Roper | Office of Public Prosecutions |
| For the Accused | Ms B Franjic | Dribbin Brown Lawyers |
HIS HONOUR:
1 Aaron John Gray, on Friday of last week, you pleaded guilty to a single charge of sexual penetration of a child under the age of 16. As the child was an employee and under your care, supervision or authority the offence has a maximum penalty of 15 years' imprisonment.
2 You are 33 years of age. You have no prior or subsequent criminal history.
3 The matter was opened to me in accordance with an amended written opening dated 15 May 2019 by Mr Roper who appeared last Friday on behalf of the Director of Public Prosecutions of this State. That document was marked as Exhibit A on the plea. Your counsel, Ms Franjic, told me that it was an agreed factual statement.
4 Accordingly I see no need to set out the full factual basis of sentencing in these, my reasons. It is contained in that agreed document and I will not stray beyond the agreed facts. Your counsel conceded that this was serious offending and requiring a term of imprisonment. I still should say something, but I will say it as briefly as I can.
5 As you know, you employed a young girl in your pizza franchise outlet. She was 14 years of age, close to 15 when you employed her in 2014. There is no question but that you knew her age. After she had been in your employ for some time you increased her level of responsibility and that increased your level of contact with the young girl, including phone contact. In June 2015 you sent a text message to her telling her that you had dreamt of her. It was obviously an entrée into inappropriate conversation, there is no other reason for you to send that sort of message. Unsurprisingly she asked you what you dreamt of and you told her. You told her it was a sexual dream. Inappropriate phone contact then continued for the next few months at least, with you describing the sexual acts that you would like to perform and she responded in kind.
6 You took it to the next level on an occasion in September 2015 when she was, at that stage approximately, 15 years and 9 months of age. Given her age and your status as her employer that next level was a serious criminal one, as you well knew, involving as it did unprotected penile vaginal sex in the shed out the back of the pizza shop. You ejaculated inside her. Inappropriate phone contact continued and the second occasion embraced by the representative charge took place the next week in virtually identical circumstances. Now it is accepted that this routine continued pretty much every Saturday up until mid-December. (see paragraph 11.) I repeat however as I said in the course of the plea that this is before me only as to context, that is the conduct referred to in paragraph 11. You do not fall to be sentenced for that conduct. The representative charge specifies the first occasion and is representative of the second act a week later and that is what you fall to be sentenced in relation to.
7 Plainly it cannot be asserted that the conduct was isolated or occurring out of the blue or really a one off spontaneous act. That is not the nature of the conduct at all.
8 Now the young girl’s older sister came across some of the messages and then some images which had been sent and dismayed at seeing those things, she confronted you and her sister at the pizza outlet. This was in December 2015. You apologised. The young girl resigned. However what is plain is that, rather incredibly, the contact continued for quite some time beyond that date but in a setting where, of course, she was no longer employed by you and no longer under the age of 16. The older sister got wind of that continued contact and confronted you again via Facebook. You told her that you could not control your feelings for the young girl but you vowed to cease contact. The sister also at one point disclosed your conduct to your wife. You ceased contact with the young girl in about May 2017.
9 She complained to the police in October of that year, a pretext phone call was conducted by the girl’s mother on 17 January 2018 where she spoke to you and you admitted the improper conduct. The police arrested you on 14 March 2018. You were interviewed and made damaging admissions. You were not charged until October 2018. Thereafter you pleaded guilty at the earliest opportunity.
10 I remanded you in custody at the end of the plea last Friday, given the concession made in this case that you were bound for prison and the undoubted accuracy of that submission. The only other date of significance to plug into that chronology is your selling up the business and moving away in about November 2017.
11 So much then for what really is my brief summary of the summary placed before me. It is hard to know what possessed you. Not only did you know how wrong and criminal this conduct was involving as it did an underage employee. You were also of course a married man. Your son was then but a toddler. You were living a false life for a sizeable period but it is no part of my role to censure you morally. What I am here to do is to pass sentence upon you for the serious crime you have committed.
12 I sentence then in accordance with the full agreed factual statement, to be found in Exhibit A.
Impact
13 There is a single victim impact statement which was read aloud by the mother of this young girl and it demonstrates the very sizeable impact of your criminal conduct. No doubt the mother thought her daughter safe in your employ. Of course the mother learnt well after the event of this totally inappropriate and criminal conduct by you. She had the misfortune of seeing some photographs that had been exchanged. It is plain that she and her daughter have been deeply impacted.
14 The problem with this sort of sexual connection is that the under age girl is not really in a position to know her own mind. A younger person is often enough impressionable or immature and not fully developed. You were an adult, you were virtually twice her age. You were someone that she would understandably look up to. You were someone who was paying her. You were someone who had duties to some extent to protect her and treat her appropriately as your employee. You were the older person, you were the adult, she was not and the adult is meant to actually exercise appropriate judgement. You did not and you have caused great harm, there is no doubt about that.
15 The young girl's mother has lost the sense of trust that she formerly had and she speaks of perhaps now being overprotective of her other daughters. She feels a variety of emotions, she is angry and sad and frustrated. She also even has a sense of guilt in her mind, perhaps a sense of not having protected her daughter. Of not having seen what was occurring. Well of course there should not be any sense of guilt. It is not her fault at all. There is a sadness for her in considering the loss of innocence of her daughter. She says of her daughter that she was sad and vulnerable owing to the departure of the father from the family home. There was at one point, she says, a sense in the girl’s mind of having herself acted shamefully. Of feeling some guilt and shame and embarrassment for what had taken place. Well, she should not feel that at all either. The one person who acted disgracefully and shamefully and criminally was you. You and only you. The adult who should have known and did know better but who chose to commit this serious crime. You are the person who has brought about this damage.
16 So I take into account, as I am required to, the significant impact of the crime.
In Mitigation
17 Your counsel, Ms Franjic had prepared some excellent written plea submissions that were marked as Exhibit 1. She conducted an equally excellent plea on your behalf. It was also a sensible and realistic plea. There were many matters of mitigation which she took me to. Plainly there were matters of aggravation as well. She did not shy away from the seriousness of the crime and the high importance of denunciation and general deterrence in this sort of case.
18 She took me to your background in detail both in her written and oral submissions. It was contained also in the other written materials placed before me, including the report of Dr Barth. She tendered the reports from Dr Barth and Mr Burrows as well as a large bundle of impressive character references. She touched upon the fallout from this offending, that is fallout upon you.
19 She made submissions as to the objective seriousness of the offending and the sentencing purposes to be reflected in this case. Your counsel also took me to the well-known principles dealing with the way the representative nature of a charge can be taken into account. She referred me to the case of Crouch [2019] VSCA 30, which conveniently restated those principles in paragraph 36 of that decision. I am not sentencing you on a rolled up charge for all of your conduct. It is a representative charge and I sentence in accordance with those principles. I will say more about that later in these reasons.
In addition, in mitigation Ms Franjic relied upon;
· Your co-operation with the police;
· Your early guilty plea;
· The presence of remorse;
· The absence of any criminal history prior or subsequent;
· The impact of delay in this matter and your good conduct in the course of that period;
· An increased custodial burden flowing from separation from your family and the concern felt for the predicament of your wife and your son;
· She argued that you had excellent prospects of rehabilitation;
· She conceded that your criminal culpability was high and that you must be sent to prison. However she argued for a combination type sentence, so a term of imprisonment with release ultimately onto a community corrections order.
Prosecution
20 Mr Roper appeared to prosecute last Friday and he, on behalf of the Director of Public Prosecutions of this State, conceded that such a combination type disposition was open to the Court. As the plea was so sensibly conducted by your counsel, the prosecutor had very little need to make any further submissions. There had been nothing silly raised by your counsel needing correction, no extravagant submissions made. Instead there had been a number of sensible concessions made by Ms Franjic. Mr Roper conceded on behalf of the Director of Public Prosecutions that s.5AA of the Sentencing Act was not enlivened here and I therefore should not have regard to that provision. I accept that submission. It is not the sort of case where s.5AA applies. You undoubtedly were of good behaviour and had no prior convictions but those facts were not used by you to offend or of assistance in the commission of the offence. They were just the facts.
21 Mr Roper took me to the case of Jowett v The Queen [2017] VSCA 358, which was germane to the consideration of breach of trust and for that matter the high importance of not double counting it given the increased penalty provision engaged by the allegation of being in a position of care supervision or authority. Your counsel by the way had conceded that there was a level of breach of trust at play here.
22 As to the Crown concession as to the availability of a combination type disposition, whilst I do pay regard to that submission, as I do to all submissions placed before me by either side, I am not bound by that sort of submission. That is because the court has to exercise its own sentencing discretion.
Background
23 I turn to you background, but I do so relatively briefly.
24 Your background is detailed in the written outline, it is supplemented by the oral submissions made on the plea. It is also found in the report of Dr Barth as well as in the character references placed before me. I accept the background that has been placed before me, there is no reason for me not to. I am not going waste your time or mine restating it all now. It was a quite decent background. It was not perfect but I am not so sure there is such a thing as a perfect background, actually. Yours was good enough, as you well know.
25 There was a significant gap in your life posed by the relatively poor relationship with your father and then the total fracture of that relationship when you were still quite young. Still it was a good, caring upbringing with a very close relationship with your mother and three sisters and your grandmother. You grew up in Queensland and you were educated up there. You finished Year 12. You were always industrious and ambitious even before leaving school. You dreamt of either being a professional sportsman or having a pizza franchise. You had real drive in your early days. You were a talented sportsman and had also worked in a pizza outlet as a young student.
26 To cut a long story short you opted for pizza over sport and that proved to be a good choice. So you progressed from being a casual worker to a pizza maker to a store manager and then to manager in a number of stores in Brisbane. At the age of 21 you moved to Melbourne to become a franchisee and never looked back with two stores. The only drawback was being distanced from your mother and sisters who remained up in Queensland and do to this day.
27 One business was sold in 2012. As I said when dealing with the chronology, you sold the other business in November 2017 and moved residence. Since then, right up until last Friday in fact, you have worked as a franchisee trainer on a salary. That involved you taking a large financial reduction.
28 You are married to Claire Woodward who has provided a reference. You two had a very rocky patch indeed over a number of years, with a still birth and a number of miscarriages. A son was born in January 2014 but plainly there had been some significant strains in your lives and obviously in your relationship. You son is now five and you are a proud, a proud, loving and committed father. Your wife will be heading back shortly into the workforce.
29 You have participated in counselling with Mr Burrows and I will say more about that shortly.
30 Though I have set out some detail as to your early family background it has nothing at all to do with this offending. You are very lucky to maintain the support of your wife. She has forgiven you for your conduct. You are supported also by your family. Your mother and one of your sisters made the journey from Queensland for the plea.
31 So then your background is obviously an excellent one. You have never broken the law. You have been a hardworking and contributing member of the community throughout your life. You have none of the serious issues that so often intrude upon rehabilitation such as, for instance, serious mental health issues or alcohol or drug problems. Indeed everything I know of you would lead to the view that it would be terribly unlikely that you would ever commit a crime and see the inside of court, much less a prison. Yet you have and a crime of such seriousness that you have sealed your own fate. There really are no winners in this sort of case. You have created a real disaster in your own life and for your own family. You have also greatly damaged the victim and her family.
32 You have been in custody now for three days.
Dr Barth and Mr Burrows
33
I have read and take into account the reports of Dr Barth and Mr Burrows.
Mr Burrows has seen you on seven occasions and has taught you some coping skills which you are putting into effect. The two reports are not relied upon as enlivening any of the principles from the case of Verdins. Ms Franjic was quite explicit as to that and undoubtedly correct when one considers the reports. It is to your credit that you have undertaken the voluntary treatment and there has been some good progress already, though you are still at a quite early stage and there is still some level of lack of insight as to the destructive impact of your offending. There is also still some level of dysfunction and distortion.
34 In the report of Dr Barth in particular, there is some explanation of the likely path into this offending. A sense of insecurity as a new father, following a fairly long and troubled path to that event. You had a feeling of there being a lack of intimacy in the lead up to the birth. You were working hard and long hours and feeling to a degree detached and disconnected, and having the young victim in your sphere. You were feeling a sense of uncertainty and perhaps a little bit of decreased self-esteem in the family setting, but a sense of approval and esteem from your young employee. There was admiration and attention, she looked up to you and you severely compromised your position. No question about that. You correctly state in the discussions with Dr Barth of the young girl:
'I’m sorry for my actions and the effect that it has had on her and her family. She was underage and couldn’t make decisions for herself. I was the adult. I was the driver of it.'
35 Spot on if I may say so. There you put your finger on some of the reasons for the existence of this offence on the statute books. There is the need to protect children, to protect them from the presumed harm flowing from this sort of conduct. The need to protect them even sometimes from their own decision making and the need to deter adults from crossing the line and engaging sexually.
36 Dr Barth comments on the troubling aspect of issues with sexual boundaries and the grossly distorted and dysfunctional views that permitted you to justify to yourself this conduct. Treatment has and will need to continue to target these various issues. You have still only limited insight but at least it is developing. You are a work in progress. You have a low-moderate risk of re-offence. It is likely to reduce with further treatment and it seems plain that the sentence I will impose will serve to further deter you. I note Dr Barth speaks of the grooming in the lead in to the offence. He factors that in to the risk assessment as well. He judges that it took place here to a degree (see paragraph 49.)
37 In any event, the reports are surely a positive even though of course there is much work to do. At least you have been attending. Not every offender does. You are not seeking to justify the offending. Quite the opposite. You are achieving some progress and some reduction in the distortions you had which permitted you to actually go about offending in the way you did. Those distorted views have been challenged and that must continue into the future to further reduce your risk. So I take into account in a mitigatory fashion the treatment you have undertaken and I pay regard to the reports of Dr Barth and Mr Burrows.
Delay
38 I turn now then to the issue of delay.
39 You have been anxious as to the outcome of this case. It would be quite amazing if you had not been. You were interviewed in March 2018 and then no doubt waited for the axe to fall. You have continued to throw yourself into work which was probably actually a wise thing to do. It at least kept you occupied. Now you are in custody and you have probably been anticipating that unhappy outcome with a sense of dread for quite some time. It cannot have been easy at all going about your life knowing that you would almost certainly be coming to court and not leaving under your own steam. You have continued to rehabilitate yourself in the lead up to the court case. Indeed that has been the position since discontinuing any contact with the victim in May 2017. You have been engaged in the treatment I have spoken of and stayed out of trouble.
40 Now as to the delay here your counsel really was focusing her submissions on the delay between being interviewed in March 2018 and being charged in October of that same year. You had your life held in suspense in that time frame and since as you awaited the Court date last week. Well, delay is undoubtedly relevant, I cannot ignore it. Afterall, I have to sentence you. If I look at the delay since the offending I have a person who has been taking steps to rehabilitate. You did yourself and your wife and the young girl no favours at all, slyly continuing with the relationship with this girl after she turned 16, but of course that was not criminal. You have not committed any criminal offences and that is what I have to have regard to and you have had the heavy burden of the case hanging over your head since police interview in March 2018. So it cannot have been easy to have that storm cloud hanging over your head. I take into account. So I take into account the delay in the ways suggested by counsel.
41 There is nothing unusual about the delay between offending and reporting by the young woman, if I may say so. One of the features of this style of offending is that a young victim may change in her attitude to what occurred as she matures and as she looks back through the prism of that greater maturity and perhaps has regret for what has taken place. I am not sure if that is the position here, but the point I am making is that the delay in reporting the event is entirely normal. None the less I have to look at your efforts in the meantime and also the burden of the threat of prosecution and that has rested upon you from March to October 2018 and since. So I do have regard to that in the way urged upon me. It is a mitigatory factor, delay here, but not a major one in my view. The unexplained delay from March to October was only a period of some seven months and thereafter the case has proceeded quite swiftly and smoothly.
Extra Curial impact
42 Whilst no discrete submission was made in the area of extra curial impact, it is also open to me to take into account the impacts you have brought upon yourself. What an altered status you have now when compared to the status of the same man viewed perhaps in 2014. A loss of the valuable franchise business, though of course that was sold, the loss of prospects in that organisation and no doubt in many others into the future given the fact of conviction and the impacts of the Sex Offender Registration Act. You have been reduced to a wage earner and now of course reduced even from that position and removed from the family home and are now in custody. You have very significantly reduced your own and your families prospects, courtesy of your own acts, it must be said. StilI I have to take that into account as far as I am able to.
Increased burden
43 You are going to prison and that will obviously impact not just upon you but many others. If you think about it, in almost every case where a court sends a person to prison there is very deep impact. How could there not be? There is impact courtesy of for instance the loss of the main breadwinner or primary carer or husband or wife or father or mother or child for that matter. There is usually deep impact upon third parties. It is in fact, when you think about, sadder still when no one is impacted by sending a person to prison.
44 You are now in prison and you will be for quite some time to come. It is obvious that this will deeply reverberate on others, especially your wife and son. It goes without saying there is this third party impact. I cannot have regard to third party impact unless the circumstances are exceptional. That is the law. It is conceded, correctly, that they are not exceptional here. That concession is undoubtedly responsibly made and correct. That is not the end of the matter though. You are in prison for the first time. That itself is not easy. You will have a sense of the difficulties faced by your wife as she adjusts to a sole parenting existence and life without you. No support from you, no income from you. She is exposed to a very different life and so too of course your young son. You know that. You will feel the anguish of being distanced from her and your child and the sense of being impotent to assist in any way. So whilst I cannot take into account the impact upon them, I can take into account the impact upon you. It will increase your custodial burden and I accept the submissions of your counsel in that respect.
Guilty plea
45 Let me turn then to some of the other matters raised in mitigation. Firstly, your guilty plea. You have pleaded guilty and at the earliest stage. That is important. You have taken early responsibility for your crimes. Not everyone does. Some people even in the face of overwhelming evidence chance their arm in front of a jury. You have not even considered doing that. The victim in this case and her mother and sister as well as other witnesses have been at least spared the experience of giving evidence in the lower Court or at trial in front of a jury in this court. For victims in particular, more so young victims, the giving of evidence I regret to say is still a most unpleasant affair and that is so despite all of the many reforms in this area including the use of things such as the remote witness facility. It is still often enough a quite confronting and damaging experience.
46 The mother in the victim impact statement speaks of her daughter’s reticence in talking about the matter and getting upset when she does. No doubt giving evidence would have been traumatic. Well, no one has been required to give evidence. The community has also been saved the time, cost and effort associated with a criminal trial. There is a utilitarian benefit in pleading guilty and I, as a judge, am required as a matter of law to take into account the fact of the guilty plea and the stage of that plea. I am required to reward an early guilty plea for the reasons I have advanced.
47 You have facilitated the course of justice in taking the steps that you have. So I take these various matters into account in mitigation. Earlier still you had made admissions both in the pretext conversation and in the police interview. Now your counsel does not suggest that in each conversation you provided complete details, you seemingly did not in either actually. I do not hold that against you. It is not an aggravating feature. The fact is though that you still made the damaging admissions that you did in the secretly taped call as well as in the overtly recorded police interview. You certainly flagged in that police interview at that early stage the likelihood of this matter ending with a guilty plea. So I take into account not just your guilty plea and the early stage of it but also your level of co-operation with the police as well.
Remorse
48 What then of the issue of remorse? A guilty plea is often enough indicative of at least some remorse, but that is not always the position. Your guilty plea was, as I have said, entered at the earliest stage. I have the expressions of remorse and developing insight on display in your dealings with Mr Burrows and upon interview with Dr Barth. I have already quoted in these reasons your expressions to Dr Barth of having a sense of understanding that you were the driver and you were responsible for the offending and your having regret for the damage that you have caused to others. Also I have the many character references placed before me which speak of a level of remorse and shame. There is also the pretext call conducted between the mother and you, and the police interview. As incomplete as the pretext call was, and it was incomplete, you were still saying to the mother how sorry you were for having done what you had done to her daughter.
49 Now, as I have said earlier, it is fair to say you are a work in progress and there are still some distortions in play. Your counsel is not suggesting that there is full remorse here but she argued instead that there is a significant level of genuine remorse. I am prepared to accept your counsel’s submissions in that regard. You are not in any way revelling in the offending or sitting there seeking to justify it any longer and are I believe genuinely remorseful. So I take that into account in your favour.
Rehabilitation
50 Your counsel argues that you have excellent prospects of rehabilitation with no prior or subsequent criminal offending, an excellent work record, family support, treatment under way with Mr Burrows and the complete absence of any of the usual barriers to rehabilitation such as mental health problems, sexual maladjustment or alcohol and/or drug problems. Add to that the increased custodial burden that you will experience. Also the presence of remorse here. I accept all the positives but I cannot ignore the issues of concern flagged in the reports or the risk assessment contained therein. Nor the fact that this was not spontaneous offending at all. It was not isolated and you must have appreciated how seriously wrong it was criminally. Yet you offended. So you stepped a fair way beyond the normal parameter’s of appropriate behaviour here and continued to for some time. The uncharged act evidence is before me as to context here and there is no issue taken with its use in that way. It is incredible that you ever acted as you did. Even in terms of the non-criminal conduct occurring after the girl’s 16th birthday, it is bewildering that you continued to so act in the face of discovery and confrontation by the sister.
51 You will be serving your first sentence in difficult circumstances, I accept that. The sentence itself will surely serve to deter you into the future to some degree and one would expect you will be required to do a sex offender program in custody which will further, hopefully, reduce your risk of re-offence. So too registration under the Sex Offender Registration Act. I cannot see how you could ever be permitted to run any business employing any child for the period where you are registered which will be a significant one. So purely in terms of access to children there will be sizable limitations established. In all the circumstances I am prepared to find that you have very good prospects of rehabilitation indeed.
General remarks
52 I take into account all of the submissions made by your counsel as well as by the prosecutor. I also take into account all the written exhibits which were filed. I have not descended to describe the written character references from family and work associates. However I have regard to all of them. I have read them all again. They make for sad reading, actually, some of them, especially your wife’s reference. Taken as a body they show many of your qualities, also some of the trials and tribulations in your life in the lead in to and around the time of the offending. They demonstrate that you are far more than just the person who has committed this serious crime. Rather they demonstrate the valued life you have led, the contributions that you have made and the extent to which this behaviour stands in stark contrast to what might have been expected, as could be gauged from your past behaviour. No doubt the authors are all taken aback by your conduct. I take into account that written material, but I just do not see the need to further describe it in these reasons.
53 I turn now then to some general remarks about your offending. Before doing so, though, I deal with some general principles in terms of sentencing.
54 Sentencing is never an easy task. Anyone who says it is has just never done it or has long since ceased doing it. It is especially hard in some settings, for instance this one when dealing with a person of past good behaviour who falls to be sentenced for serious offending. There are a variety of sentencing purposes and a court often enough finds that they pull in different directions. For instance here I have your rehabilitation. But there are many other sentencing purposes other than your rehabilitation. There is the need to denounce your conduct, to punish you justly and proportionately, to protect the community and to deter both you and others.
55 Now rehabilitation of course is a purpose of sentencing which I must pay adequate weight to and I have commented already on my very favourable views in that regard. But the sentencing task is not all about you or what is best for you. I have to sentence you for your serious crime, one committed here without any real reduction in culpability at all. I have to consider the nature and gravity of the offence. Your counsel conceded that this was serious offending. She was right. It was. You knew what you were doing. You knew it was wrong. You knew it was criminal. You knew her age. You knew she was your employee. You had every opportunity to draw back from this foolish decision to offend yet you did not. It may well be that you were in a zone in your life that permitted you to justify the conduct in your own mind and at a point in your domestic life where you, for whatever reason, craved affection or intimacy or admiration. However this girl was totally off limits to you, a fact that you well knew. It was open to you as an adult to seek affection or intimacy with any appropriately aged female. Had you had done that you would not ever have heard my voice. It still would have represented a very poor decision in terms of your wife and child but at least it would not have been criminal conduct.
56 The act that I am dealing with was not spontaneous in any true sense. I do not accept the suggestion of the sexual act being genuinely described as opportunistic. True it is you did not trawl through the streets looking for a person. And I am not suggesting you were acting as a predator or callously targeting your victim. You had a young girl in your employ, you had formed a relationship and to that extent it was situational. However plainly there was to some extent some risqué behaviour in the lead in. You introduced the topic of your dream and then expanded upon that by describing it as a sex dream. You were not just raising that out of the blue for fun. Raising it in the way that you did and discussing it and disclosing the subject matter changed the style of the relationship. You sent images, she sent some back. You had months to reflect on your position and the young girl’s position. Months to step back from the brink, the brink of this critical act. Instead, you pushed on over the brink. The expert Dr Barth comments on the existence of some grooming here and that is surely unmistakeable.
57 The setting of the physical act, the immediate physical act, had no disinhibiting factors at play in the sense that you were not disinhibited in any way by alcohol or drugs or mental illness. You had worked yourself into a position of perhaps justifying the conduct.
58 I am dealing with a representative charge here not a rolled up charge. The represented instance on the second occasion is not an aggravating feature at all nor does it have the consequence of increasing the maximum penalty here. The representative charge precludes any moderation of sentence that may have been warranted had the offending been the subject of a single isolated incident. It was not. I am entitled to have regard to the wider context here and I can have regard to that in assessing the nature and gravity of the offence, your moral culpability and the impact upon victim. It can also inform the courts assessment of the weight to give to sentencing considerations such as denunciation protection of the community and deterrence, as well as rehabilitative prospects (see Crouch [2019] VSCA 30, paragraph 36.)
59 Additionally, quite aside from the representative nature of the charge I have by way of the agreed context evidence the uncharged conduct. I really do not know why it is not included in the representative charge, but it is not, so you do not fall to be sentenced by me for that. However I am satisfied beyond reasonable doubt it occurred, there is just no issue about that at all and no challenge as to my ability to have regard to it as going to context. It also precludes any consideration of the act being isolated.
Unprotected penetration
60 As to the act, we are dealing with unprotected full penile vaginal penetration leading to ejaculation without protection. It is conceded that this is a matter of aggravation. It carried with it risks, either of some form of infection or for that matter pregnancy. Now the risk of pregnancy is the one I do factor in given your confidence as to not being the carrier of any sexually transmitted disease as expressed in the pretext call. But undoubtedly such an act as that carries with it a risk of pregnancy.
61 It is conceded that there is a breach of trust here. Your counsel urged caution in terms of the double counting of an aggravating feature which in fact was embraced in the penalty provision already. However she argued that the court could have regard to the level of breach when assessing your criminality (see paragraph 23 of the written outline.) Ms Franjic suggested that the breach of trust fell towards the lower end here when compared with other cases, for instance a teacher or relative. I believe a teacher would in so acting likely have a greater breach of trust given the pastoral care involved with a student and a relative may or may not commit a graver breach of trust, that would be dependent on many matters including the nature of the relationship, the age of the two participants and the setting of the sexual act.
62
It is always a matter of degree and the seriousness of your offending is not to be determined or gauged by considering the absence of aggravating features. It is determined by looking at what you actually did, and what you did was extremely serious. Plainly there was a breach of trust involved here, the girl was working with you, you were her employer and her mother had permitted her to work there. I have to very careful about not double counting that breach of trust and I will be very careful and pay heed to statements in the case of
Jowettand also Bradey [2009] VSCA 169. It is after all that relationship of care supervision or authority which provides the aggravation and hence the increased maximum penalty, so it cannot be double counted.
63 However the matters which might be absorbed under the concept of care supervision or authority do not necessarily cover all matters which might encompass a breach of trust. The trust can be owed more widely than to the primary victim as it obviously was here (see Bradey paragraph 38; Jowett paragraph 30.) Undoubtedly, you knew of the fact that you were acting entirely inappropriately owing to her age and her relationship as a young employee. She was permitted by her mother to work with you in your business. That is what is important here.
64 You fall to be sentenced for the crime of sexual penetration of a child under 16 who was under your care, supervision or authority. Consent is no defence to such a charge. The offence is founded on the presumption of harm and the inability of child to consent, something you are waking up to now given your reported discussions with Dr Barth. This young girl’s apparent or ostensible consent, it does not excuse your conduct or your crime. You were the adult. It is not a mitigatory factor. She was too young to meaningfully consent. She was 15, and it is not mitigatory to say of a 15 year old complainant that she consented to the act. Her apparent consent does not then shift moral culpability in some way to her. I am dealing with your criminal culpability and it is high as is conceded here (see the case of EJA/Clarkson [2011] VSCA 157 and also the case of Abad [2016] VSCA 279)
65 It may explain how you have focussed on that apparent consent and used it to justify your act in your own mind. But she was too young to consent and you knew that but ignored it. You knew her age. You knew that you were not allowed to have any form of sexual activity with her. You chose to. That is why you are being sent to prison. You were close to twice her age and were in the dominant position as her employer. You really should never have considered this conduct or been in any way fortified by her apparent consent. Someone of that age may not know their own mind or be in a position to judge appropriateness of that conduct. You were 29 and should have. You drove this offence as you now concede. Now of course, had there been any hint of force or threat or coercion, they would be significant matters of aggravation but they do not exist in this setting here.
66 I have to pay regard to the maximum penalty and also of course the impact of your crime, which has been significant.
Current sentencing practice and Offence gravity
67 I must also take into account current sentencing practices. It is not a single controlling factor, it is just one of a number of matters that a court has to have regard to.
68 I have looked at the SACStat sentencing data held by the Sentencing Advisory Council online.
69 I have also considered the Judicial College of Victoria sentencing manual and considered sentences imposed both by judges in this court as well as matters dealt with in the Court of Appeal on appeal to that court.
70 The fact is though that every case is very different and so too every offender. Statistical material has inherent limitations and so do other cases and that is because of course what I have to deal with is your unique situation. Your crime, your circumstances. There are never identical crimes or identical backgrounds. There are almost always a host of differences in the conduct, in the setting, in the breach of trust, in the impact, in the duration and the aggravating and/or mitigatory considerations. What I have to do is pass an appropriate sentence in your case and these other cases that I have looked at are not precedents and nor do the statistics provide any answer at all to my task.
71 This was unmistakeably serious offending as your counsel concedes. It is offending that must be strongly denounced indeed and I do denounce it. You really should be ashamed of yourself and I sense that you are and that is a good thing.
72 As I have said a bit earlier, I have to punish you. Punishment is important in this sort of case, but I have to do it justly and proportionately.
73 I have to give weight to deterrence, both specific and general. Specific deterrence is the need to deter you from future offending. Well, specific deterrence and for that matter protection of the community, which is another sentencing purpose I think can be significantly moderated here. It stands to reason I would give those purposes far, far greater weight in a case for instance where there was a less favourable view taken as to your future prospects or for that matter if you had relevant past prior criminal history. But that is not what I am dealing with here. I am optimistic as to those future prospects, as I have announced already, and as to your having a relatively low risk of reoffending in this way again should treatment continue. So I believe it is permissible to very significantly moderate those two sentencing purposes. Specific deterrence especially has to a degree, I would have thought a large degree, been achieved already. I cannot ignore it though. It still has some minimal weight.
74 General deterrence though is in a very different position. It is of paramount importance here and that is conceded. The courts must protect children. There are countless authorities dealing with the seriousness of sexual offences committed against children and the need for significant punishment and denunciation as well as the strong need for general deterrence. The courts must send a very loud and clear message to the many other would be offenders who might be tempted to cross the line that you crossed and engage in serious sexual offending. There must be no doubt in the mind of those about to engage in this sort of conduct of the certainty of serious punishment.
75 Now sending a person to prison is not something a court ever does lightly. It is in fact always a disposition of last resort. That is the law.
76
Your counsel concedes though that you must be sent to prison, that a
stand-alone community corrections order cannot achieve all the purposes of sentencing in this case. She is right. She argues though that it is open to ultimately release you onto a community corrections order. She argues that such a combination type sentence would achieve all the purposes of sentencing. The prosecution agree that such an outcome falls within my sentencing discretion. Well, if I agreed with that submission that is of course what I would do, for if such a disposition as that, a combination disposition actually met the various needs of sentencing it would be wrong as a matter of law to go beyond that disposition. There is the important principle of parsimony at play here as there always is when sentencing.
77 However, as I have said, I am not bound by the prosecution concession. I do not ignore it. My provisional view on Friday was that such an outcome was not open here but I had taken the matter at very short notice out of the reserve list on Friday. I said I wished to reflect on the matter over the weekend. I wasn’t just saying that. I have reflected deeply and spent the large part of my weekend considering this matter. I have anxiously considered the matter in detail over the weekend just gone. I have read all of the tendered materials, I have read my notes on the plea. I have looked at the cases I was referred to as well as the Judicial College of Victoria sentencing materials relevant to this task and the Sentencing Advisory Council online statistics.
78 Having done all that I believe that my provisional view was correct. One can always see some advantages in a community corrections order, even one in combination with a term of imprisonment. For instance the certainty of release onto such an order. That is a big advantage for someone to know exactly when they will be released. What is clear though is that not every offender for every offence can obtain such an outcome. If it does not achieve the purposes of sentencing it just cannot be imposed and here there is that ceiling of 12 months, essentially 12 months and three days.
79 It is not my task to fix upon the end destination, that is of a community corrections order, and then plot some course to get to that end destination. That sort of approach has been very much roundly denounced in the Court of Appeal and criticised for having compressed sentencing in a number of areas (see the case of Basic [2016] VSCA 99). There has been a great tightening up of the laws relating to community corrections orders since the case of Boulton including a reduction in the amount of prison that can be actually combined with such an order. Previously a sentence of up to two years could be combined. That is no longer the position. There have been many other changes thereafter which do not apply to you.
80 But one thing has not changed. I have to pass an appropriate sentence. I have to pay adequate regard to the various purposes of sentencing. I do not believe it is open to me in the sound exercise of my discretion in this case, your case, to release you on a combination type order. This was serious offending committed upon a child in your employ with a high level of criminal culpability. It is a representative charge and the maximum penalty is 15 years' imprisonment. It involved unprotected vaginal intercourse and you were not acting spontaneously at all. General deterrence is a very powerful purpose of sentencing here. So too denunciation and punishment. I do not believe that a combination type disposition would give adequate weight to those purposes. You have served only a handful of days in prison. It follows then there has been no significant pre-sentence detention to date to draw on and so I only have available a period of 12 months and 3 days to impose by way of a prison sentence in combination with a community corrections order. That is the ceiling and I regret to say it is nowhere near long enough. I must impose a sentence that is far longer. One by its very nature which does not permit a combination type outcome.
81 I will though provide for your possible early release by fixing a non-parole period. I am required to fix a non-parole period, given the dimensions of the sentence that I will be imposing. Now all a non-parole period provides is the possibility of early release. I cannot have regard to that possibility. Indeed I must act on the basis of your serving every day of the head sentence l will shortly pronounce. Whether or not you are released will be entirely in the hands of the Adult Parole Board.
82 I am of course conscious of the need to avoid a crushing outcome upon you.
Ancillary order – 464ZF
83 Let me deal with the ancillary order, firstly the 464ZF.
84 Application is made for a forensic sample. That application is unopposed. I am prepared to make the order that is sought. Having considered the seriousness of the circumstances of the offence I am satisfied that it is appropriate to make the order. I am justified in doing so owing to the seriousness of the offending, the fact that the order is not opposed and that I judge it to be in the public interest. So I have signed that order.
85 What I am authorising, Mr Gray, is the taking of a forensic sample from you. The authorities will approach you in custody to do that. I am authorising the least invasive procedure, so that is a scraping from your mouth and they will be undertaking a forensic procedure for the taking of a scraping from your mouth in accordance with the relevant provisions of the Crimes Act until a sample sufficient standard is obtained for placement on the database.
86 So someone will approach you in the not too distant future with a mouth swab. It is not a particularly invasive or unpleasant process. It is certainly less invasive than having a blood sample taken, which I have not authorised. But I have to tell you that notwithstanding your present lack of opposition when the time comes if you are taking a different stance the authorities can use reasonable force to enable that procedure conducted. It should not present an issue. You will just run the mouth swab around the inside of your mouth and the sample would be done. In the event that there are any difficulties no doubt the authorities would be back before me making application for a blood sample, which at this point I have no authorised. So I have made that order.
87 Yes, I will have you stand up now please.
Sentence
88 On Charge 1, that is sexual penetration of a child under 16 who was under your care, supervision or authority, you are convicted and sentenced to 42 months or 3 ½ years' imprisonment. As there is only a single charge that period is therefore the total effective sentence.
Non-parole period
89 I fix a period of 22 months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
90 You have already served three days by way of pre-sentence detention and that declaration is to be entered into the records of the court.
Section 6AAA
91 I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of this offence, I would have convicted and sentenced you to 5 ½ years' imprisonment. I would have fixed a non-parole period of 3 ½ years and that statement also is to be noted in the records of the court.
92 Have a seat for a moment please, there is one final matter I need to attend to.
Sex offender registration Act 2004
93
You have been sentenced by me therefore in relation to a charge that is a
class one offence under the Sex Offender Registration Act 2004. Pursuant to s.34 of that Act you must comply and continue to comply with your reporting obligations imposed under that Act for 15 years.
94 Now I am going to have handed to you in a moment a document that explains the many conditions and obligations which will apply to you under that Act. It will spell out the nature of your reporting requirements. They are very strict. There are also a number of prohibitions, including the prohibition upon your gaining any employment in any child related activity. That is a very widely defined term under this Act. It would pick up even unpaid or voluntary work. Any type of service or activity in connection with children is prohibited and there is a very detailed list of matters in this document. You are really going to have to familiarise yourself with these provisions. It is, as you will see, a lengthy document. It would be I think almost an impossibility for you to sit there and study it now and signify that you fully understand it. So I am not asking you to do that.
95 I am going to have you sign a form to acknowledge receipt of these materials and then what you will need to do is familiarise yourself with the details in due course. Speak to your legal team about it, not just today but at any time into the future if you have got doubts as to whether the Act applies in a particular setting. It is better that you ask, that you raise those issues and get some guidance.
96 I have seen people charged with breaching their obligations under this Act in a highly technical fashion. But there are some very significant obligations upon you here and prohibitions and you need to be awake to them because if you breach the provisions you will be brought to court in breach of that Act. It is a serious criminal offence to breach the Sex Offender Registration Act.
97 Now, Ms Franjic, you have seen these documents before. They are very lengthy. I am not going to expect he is going to sit there now and read it. He will need to do that in his own time and do that very carefully. But I am getting him now to acknowledge receipt of these reporting conditions. So you understand that and you will go down with my associate and explain that and I will get him to sign the portion where he is acknowledging receipt of this document at least. Bear with me, I will just sign it myself first. All right, I have signed that. Yes, I will have that come down with my associate please, if you would go down to your client and have him sign the acknowledgement.
98 So your client has signed that document, Ms Franjic, is that so?
99 MS FRANJIC: He has, Your Honour.
100 HIS HONOUR: Yes, thank you. All right, let me just consider if there's anything else I need to deal with. All right, now, I will just ask you each is there any other matter that I need to deal with at this stage or not?
101 MS FRANJIC: No, Your Honour.
102 HIS HONOUR: Are there any, I asked you the other day and I think I had only very limited sort of mention on the custody management issues. Are you wanting me to deal with any aspect of custody management at all or direct the authorities attention to any particular material at this stage or not?
103 MS FRANJIC: No, Your Honour, what Your Honour's already indicated is sufficient in my submission.
104 HIS HONOUR: All right and there was someone from Network here the other day and my concern obviously was, remanding your client, neither he or his family would have any true sense as to how to go about the business of negotiating that sort of period in custody, for them to get onto visitors logs and that sort of thing? Has that been looked at broadly or not?
105 MS FRANJIC: It has, Your Honour, and they managed to see him over the weekend.
106 HIS HONOUR: I'm glad to hear that, all right. Anyway, is there anything else you want me to alert the authorities to?
107 MS FRANJIC: No, Your Honour.
108 HIS HONOUR: All right and you'll go down and see him downstairs shortly, will you?
109 MS FRANJIC: Yes, I will, Your Honour.
110 HIS HONOUR: Yes, all right, thanks very much. All right and nothing from you then, Madam Prosecutor, no other matters I need to deal with?
111 MS NALPANTIDIS: Nothing further, Your Honour.
112 HIS HONOUR: Yes, all right, thank you. All right, I'm sorry to have taken so long. I will sign those formal orders. I've signed that formal order. So Mr Gray then can be removed now, thank you.
113 MS FRANJIC: As the court pleases.
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