Director of Public Prosecutions v Head

[2017] VCC 1958

IN THE COUNTY COURT OF VICTORIA Revised
 Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-02273

Ind G11967416.1

DIRECTOR OF PUBLIC PROSECUTIONS

v

Kyle HEAD

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	Arraigned 1 November 2017:Plea:13 December 2017
DATE OF SENTENCE:	20 December 2017
CASE MAY BE CITED AS:	DPP v HEAD
MEDIUM NEUTRAL CITATION:	[2017] VCC 1958

REASONS FOR SENTENCE
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Sexual penetration of child under 16. 15 year old victim, 20 year old male offender: Now 23 years old

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Albert	Office of Public Prosecutions
For the Accused	Mr P Haag	Armstrong Ross Solicitors

HIS HONOUR:

1.Kyle James Head, on 1 November of this year, you were arraigned on the filed over plea indictment and you pleaded guilty to two charges of sexual penetration of a child under the age of 16.  These offences are punishable by a ten year maximum term of imprisonment.  They are each laid as specific charges though the summary makes plain enough that Charge 1 involves penile vaginal penetration in a variety of positions.  

2.You have no prior criminal history and nothing outstanding.

3.The details of your offending are set out in Exhibit A, the written summary of prosecution opening that is dated 30 November 2017.  I was told by your counsel, Mr Haag that this was an agreed statement.  It is a lengthy document spanning 13 pages.  It was read aloud in open court by the prosecutor and will remain on the Court file.  In those circumstances, I really see no need now to fully restate the sentencing facts in these, my reasons.  I will not stray beyond the agreed facts.  That is important as the matter was initially before me for trial and there was a longer indictment alleging more acts.  Well the matter settled on 1 November on the basis of the two charges laid on this filed over indictment and on the basis set out in the agreed summary.  That is the basis upon which I must pass sentence.

4.Your offending was serious as your counsel correctly conceded.

5.At the time of your criminal acts in September 2015, you were 20 years old, just a few days shy of your 21st birthday.  The victim who I will not identify by name was 15 years old, just a couple of months shy of her 16th birthday.  Indeed I should make plain to her and her family should they see these reasons at any stage, her identity is protected.  No one can publish any details which are likely to lead to her identification.  Returning to the facts, you worked with her father.  He had organised for you and another work colleague to come over to his house on the Saturday in question in September 2015, and that was to do some concreting in the drive way.  That work was performed by you.  You told police that you had been to the house before.  You had been told that she was 15.  On the day in question your victim said hi to you and then went out for most of the day.  As the work was coming to an end in the early afternoon, you and the other two men started to drink some alcohol.  That continued on into the night.  You drank a lot, there is just no question about that.  Beer of various descriptions, some bottled and some home brew.  I have no doubt that in the course of the evening you became significantly affected by alcohol.  The Crown accept that is the position.  You still knew what you were doing, though I seriously doubt that you would have done what you did but for the disinhibiting effect of alcohol.  The young girl had returned to the house earlier at around 6 pm and was introduced to the group and again it was said that she was 15.  You in fact had asked her age and she told you she was 15.

6.

To cut a long story short, by a time after midnight, you were certainly not in a fit state to drive home, there were some vacant bedrooms and you were placed into one, by the girl’s father.  The father then went to bed himself.  The other man you worked with had earlier been put to bed in another room, also the worse for wear.  The TV had been turned on in your room but at one point you left that bedroom went to the young girl’s bedroom and asked her to assist you in terms of the use of the DVD or video program system.  She came in and you then prevailed upon her.  You asked her to stay and watch on no less than three occasions, and with a growing tone of frustration in your voice.  That was her perception.  She did stay and that was because she felt intimidated by the setting.  You were 95 kilograms, she was 50 kilograms.  

You told her to sit down.  She did.  You moved closer to her and started touching her and removing her clothes.  You removed your pants.  She had frozen.  

You asked if she was okay and she said “not really, you have a girlfriend and I’m 15.”

7.She had given you no indication at all of any interest in you, sexual or otherwise.  She was 15.  She was completely unaffected by alcohol and had no interest in any sexual activity.  You were significantly affected by alcohol and were obviously seeking sexual release.  Your victim said in the VARE that your conduct was not consensual. She said of you: “He probably thought it was…I didn’t want it to happen and he probably didn’t pick up on that until I wanted to go back to my bedroom. But ….. he was pretty drunk so he probably was too out of it to even pick up body language”.  See paragraph 14 opening.

8.

The sexual acts then occurred in that room.  They should not have.  They were not brief.  They were unprotected and you ejaculated though it is not entirely clear if that was inside her or not.  You should be ashamed of yourself.  

The young girl was deeply upset and embarrassed by the conduct but kept it to herself for as long as she could.  It spilled out on the Monday evening when following a disagreement with her parents about going out that night without permission, she then spoke to her older sister, disclosed what had happened and the sister passed on that unwelcome information to the father.  Your victim confirmed the truth of her allegations when brought before her father.  

The father responded by promptly arming himself with a baseball bat and went to your work place and clobbered you.  Though I am not here to countenance vigilantism or self-help, it is actually a bit hard to blame him.  I suspect you don’t, as you chose not to pursue any complaint as to that assault.

9.You sent texts that evening saying that the acts were mutual and that you hadn’t thought of the girl’s age.  The second statement I suspect was partially truthful in that you were prepared to ignore her age, the first probably more wishful thinking or involving a reconstruction courtesy of a fractured or impeded recall of the events.

10.You were interviewed by the police on 1 October 2015.  From the standpoint of ever sensibly conducting a trial, the interview was a disaster for you as you moved from one version to another at each point providing a little more detail.  You claimed essentially that the young girl had come into your room uninvited and then had her way with you.  That is what it boiled down to.  It was absurd and divorced from the reality of what occurs in the real world generally and what actually occurred on the night as you now concede.  You have now abandoned that account and accepted your victims account.  Your account to police progressed from there being touching but nothing more, to touching of your penis and your touching her breasts.  It progressed to your recounting that your penis somehow was in the girl’s mouth and you at some point likely ejaculated.  The young girl’s version of events was put to you and you expressed uncertainty as to what else might actually have happened in the room.  You correctly put your finger on one thing.  This was a drunken mistake.  It sure was, I have no doubt about that.  t was a very serious one.  It was your mistake, not hers.  She made no mistake at all.  She happened to be there in her own home, in her own bedroom and you prevailed upon her and took advantage of the situation.  Whilst talking of mistakes, the father and mother of your victim are kicking themselves for making the mistake of letting you into their home on this night.  But it is so easy to be wise after the event.  They would have had not the slightest reason to think that this sort of event might unfold.  You were after all to them the very same person referred to in the character references placed before the Court.  Why would they believe that this might occur at your hands? In fact, earlier in the day you would not have believed yourself capable of such acts and yet you were.

11.

Your interview with the police was the proverbial “train-wreck”.  It was highly suggestive of the advisability of negotiating some form of settlement of the matter and as early as possible.  I have not even mentioned the DNA on the high vaginal swab which the prosecution sought to lead against you.  

This matter cried out for early exploration of a plea resolution.  One that would spare the witnesses including the unfortunate victim from the experience of giving evidence and one which would have provided some clearer and earlier evidence of your insight and remorse.

12.Regrettably the case was not swiftly settled.  It should have been.  You would have relied on those advising you and they would have relied upon and acted on your instructions.  So the matter drifted along.

13.

A committal was conducted and then you were committed to stand trial.  

A defence response was filed.  It was an unusual document to say the least.  

A special hearing was conducted where your victim was cross examined.  It is a shame it was not settled before then but your legal practitioners act on your instructions.  The only offer to plead was to the oral penetration but conditional on an acceptance by the prosecution of your implausible factual version.  That was no offer at all and was correctly rejected.  As the matter came before me I had a defence response which spelt out the nature of the matters in dispute.  There were a number of different defences, some almost existing in direct competition with others.  The acts were in dispute other than the one you had seemingly admitted.  The other acts (including the penile vaginal penetration) were denied.  The oral penetration and any other act proven to have occurred were said to be involuntary on your part.  Intoxication was being run as a defence in the sense of your acts being without any volition, that is unwilled.  The defence essentially was that the acts other than the oral penetration did not occur, if they did, they, including the oral penetration were unwilled and lacking in any volition, if not, that you had a reasonable belief that the girl was over 16, something which ran directly counter to the evidence in this case, including your interview account and the texts saying you didn’t think about her age.  There were conflicts between the various defences, the lack of volition on the one hand and the claim of reasonable belief on the other.  There were going to be applications to exclude the texts and the DNA and portions of the interview.

14.As I have said, the complainant was cross examined at a special hearing.  Well I cannot ignore the stage at which this matter has resolved and the fact that along the way there has been a committal and the decision taken to cross examine the young complainant subsequent to the committal.  The fact is you, on your own version, had a recollection of oral sex occurring.  It is surprising that there were not greater steps taken to resolve the matter but there were not.  I can’t really know why there were not

15.You are not charged with rape.  You fall to be sentenced for the crimes of sexual penetration of a child under 16.  Consent is no defence to such a charge and nor is ‘apparent’ consent even necessarily mitigatory on a plea as the offence is very much founded on the presumption of harm and the inability of child to consent.  Where suggestions are made of consent it leads then to an examination of the circumstances in which the apparent consent was given.  It is probably true that you may have had difficulties picking up signs and her body language.  Even if this young girl had been totally happy with what was occurring (and she was not) that would not excuse your conduct or your crime.  You really must understand that even had she been consenting and she wasn’t, she was too young.  She was 15.  It is not mitigatory to say of a 15 year old complainant that she consented to the act.  Even if established, and it is not and nor was there any suggestion that she did consent, it would merely be an absence of a matter of aggravation.  See the case of EJA and also the case of Abad.  She was too young to consent and you knew that but ignored it.  To rebuff your advances, she told you she was 15. She reminded you that you had a girlfriend.  Each of those things were true, but they did not stop you.

16.You knew her age.  You knew you were not allowed to have any form of sexual activity with her.  You chose to.  I am sure the disinhibiting effect of alcohol had a strong role here.  That is the context but it is not and cannot be greatly mitigatory.  As I said in the course of the plea, there are I am afraid very many sexual crimes or crimes more generally where alcohol has disinhibited the offender, where the crime may not even have occurred but for the alcohol.  Sex crimes, crimes of violence and driving offences.  It is all too common that alcohol plays a role, often enough a very large role.  

Victim Impact

17.There are victim impact statements in this case.  Even had there been none, as I have said already, there is a presumption of harm which underpins sexual offences committed against children.  But I have the statements themselves.  I have read them in their entirety since the plea and whilst I will take into account the impact statements, I am not going to descend to the full detail of those impact statements now in these my reasons.  There is no need for me to.

18.There is nothing surprising in the description of the impact upon these people.  I still should say something about the impact and what is contained in that material, but I will be brief.  You need to get it into your head.  You are in the dock, but this is not all about you.  I am going to be sentencing you, and soon enough I will move on in these reasons to deal with aspects of your background, of your prospects, of your employment record, your family and matters placed before me about you.  I am going to be sentencing you for the crimes that you have committed upon this young girl.  They have had a profound effect.  I will turn very briefly to some of the sentiments contained in those impact statements. 

19.

As I do so, I recognise the difficulty of reducing these things into words.  It is not easy.  Your acts have had a devastating effect upon the direct victim and her family.  She was a 15 year old girl in her own home.  You were trusted by her father.  Your direct victim describes her feeling of loss of self-worth.  

She suffers from stress, anxiety and depression and has nightmares and changed sleeping patterns.  She has lost trust in people and became isolated at school.  Her school performance slipped.  The special hearing was conducted in August of this year, her VCE year, Year 12.  The trial where many family members were to be called was listed in late October as she contemplated the oncoming exams.  She no longer feels good about herself.  She does not feel safe.  Her mother and father feel a sense of guilt and failure; of responsibility.  This occurred on their watch.  They were in the house.  They invited you to stay at their house and this was the outcome.  The mother describes the pain of seeing her daughter go from being confident to anxious, stressed and depressed.  The family feels broken, I am told in those statements, because they are.  Your conduct has produced emotional turmoil for this family.  I take into account the impact of your crimes.  It has been very sizeable and will continue into the foreseeable future.

Mitigation

20.Mr Haag has conducted an excellent and thorough, and for that matter, persistent plea on your behalf and raised a number of matters in mitigation.  He relied primarily on:

·your guilty plea,

·the presence of some remorse,

·your relative youth at the time and your background being a hardworking young man with no prior criminal history and none since,

·your prospects of rehabilitation

·the direct impact upon you brought about by this offending

21.

Mr Haag argued that you had very good prospects of rehabilitation and a low risk of re-offence.  He made submissions as your youth and the context of and level of seriousness of the offending.  Also as to the role played by alcohol.  

He relied upon a large array of positive character references marked as

Exhibit 2.  He was arguing for the imposition of a stand-alone community corrections order.  Failing that a term of imprisonment with release onto a community corrections order.  He argued that prison was not necessary in this case.

Prosecution

22.Mr Albert, who appeared on the plea submitted on behalf of the Director of Public Prosecutions of this State that your offending required a term of imprisonment.  Denunciation, general deterrence and punishment were significant purposes here he argued.  It was not offending at the lowest level he suggested by way of argument.  It was unprotected penetration.  It has had a large impact.  There was no relationship at all, this was virtually a first meeting and you had been permitted to stay in this house.  You took advantage of the setting and having asked her to come to your room, and requested that she stay.  Mr Albert suggested that the girl was vulnerable owing to her age.  Everyone else in the house was asleep and you then chose to commit these offences, fixed with knowledge of her age.  The prosecution queried the extent of remorse given the chronology of the court hearings that I have set out

Background

23.I turn only very briefly to your background.  Mr Haag outlined your personal background in some detail to me.  There is also reference to it in many of the personal and work references.  I accept that personal family background so I do not see the need to descend to the full detail of your background. You know what it is and it has been a good one.  You have very strong family support as is plain from the various character references placed before me, not to mention the presence of many supporters at Court.

24.

You are still a young man, and one with no criminal history at all.  These are matters of real importance in this case.  You were born on 6 October 1994, so were 20 almost 21 at the time of the offence and are now 23.  You are one of four children.  Your parents and siblings were all at court and have provided references.  You are the second youngest.  Your various siblings are all established in careers other than the youngest who is studying.  You and your family have not troubled courts before.  This is a new, a foreign and I suspect an awful experience for you all.  It is plain from all of the materials placed before me that you are a decent young man from a decent family background.  

Your father has retired, your mother has gone back to tertiary study and qualified and works as a primary school teacher.  You worked from a young age, only 14 years and nine months, at MacDonald’s.  You followed your father, who was in the building game, around the various building sites as a youngster.  You stayed on at school, completed year 12 but then headed off into an apprenticeship as a landscape gardener.  Your true passion though was concreting.  I am not going to set out all of your jobs.  I was taken to them and there are excellent references from work colleagues.  You have had full time employment since leaving school and indeed for a year or so you were working two jobs.  You were working from 7 am-to 1 pm in concreting and then working as a machine operator from 2.45 until 11.15 at night at the company where you had met the victim’s father.  You have continued to work up until my remand of you the other day and I am confident that finding work for you will never be much of a problem.  It is for some but you are obviously not shy of hard work.  The materials in Exhibit 2 describe your excellent work efforts over the years since you left school and indeed even before then.  Those same materials also demonstrate to me that this conduct is judged to be deeply out of character.  Again, I do not see the utility of working my way through every one of these references.  There are references from friends, family friends and family expressing shock and dismay at your conduct.  Many of these people have spent large amounts of time in your company over the course of your life.  Observing you, dealing with you, playing or camping with you.  They have watched your interaction with their children and with other children.  There is a large range of correspondents and they speak with one voice.  They speak of your qualities as a friend, a son, a brother, a worker, a cousin.  Your respectful attitude in the past towards women, based on observations made of you in mixed company.  Respect which for your victim was so conspicuously absent on this night in question.

25.You had been in a long term relationship with a young woman named Kennedy.  That ended as a result of these acts.  That was a large blow for you.  You did attend for medical treatment following on from the assault committed upon you by the victim’s father.  There is a medical report from the hospital speaking of the treatment that you obtained.  Essentially, you lost your job.  So too did the victim's father.  You moved home for about a year and have been living with a friend as you await the finalisation of this matter.

26.You are no longer a young offender in the legal sense of that phrase as it is employed in the Sentencing Act.  You are still young though, there is no question about that.

27.You are not eligible for detention in a Youth Justice Centre.  Confinement if it is warranted in your case can only be achieved by adult imprisonment.

Guilty Plea

28.I turn now to the matters that have been raised in mitigation.  Firstly your guilty plea.  It has a utilitarian value and that is so despite the timing of the plea.  It was not being suggested by Mr Haag that it was entered at the earliest opportunity or even at an early opportunity.  Plainly that is not so but of course there was a trial indictment containing a number of charges which ultimately did not proceed and I take that into account.  I can’t lose sight of that fact.  The plea is accordingly not as late as it might otherwise seem, just viewed chronologically.

29.It is a shame you did not make a realistic offer to settle this matter very shortly after being charged by police.  The matter seemingly could have been finalised in early 2016.  This would have had real benefits for all concerned.  For you and for your family.  For the victim and her family.  That may be so, but that is not what occurred.  There is still a saving courtesy of your ultimate guilty plea.  A number of witnesses have been spared the experience of giving evidence at trial.  Regrettably not the complainant who was cross examined in the special hearing in August of this year as she grappled with her Year 12 Studies.  I still must recognise that you have pleaded guilty and that is still important.  The community has been spared the time, cost and effort of a full trial.  The matter settled on what would have been day three of the trial, though there had been murmurings the day before, from memory.  It was listed for a seven day trial.  Witnesses were waiting to be called at trial.  At last you took responsibility for your acts. The matter settled.

30.Additionally in your case, you had co-operated with the police and made some admissions so I take that into account as well.

31.You have in these various ways facilitated the course of justice, and I will pass a lesser penalty because of your guilty plea and your level of co-operation with the authorities.  I will spell out to you at the end of these reasons the dimension of the discount that has been achieved here.  It cannot be of the same dimension of someone making full admissions and pleading guilty at the very earliest stage which you did not do.

Remorse

32.

I turn now then to the contention that you are remorseful.  Well it is here that the course of the proceedings is potentially problematic.  You have through counsel chosen to cross examine the victim at the special hearing and put to her your bizarre and implausible instructions as to her initiation of the acts and your lack of volition.  It was nonsense.  You have chosen to cross examine her mother, sister and father at committal hearing.  It was your right to conduct the committal, I make that plain, as it was your right to conduct a trial.  The matter settled as you were nigh on hopping into the witness box challenging the admissibility of the obviously highly damaging text messages sent by you on the night of the disclosure by the young girl.  I set all that out again as it is a pretty unpromising basis from which to suggest the presence of full remorse.  Your counsel suggested there was some remorse.  You have pleaded guilty.  That is important.  You have taken responsibility.  A guilty plea is usually indicative of some remorse.  Your counsel spoke of the way in which you had come to an appreciation of the likely faulty recall that you had of the events.  

Of the difficulties of one such as you beginning to recognise that you had behaved in a way so deeply foreign to your character.  You had a fractured recall of the events and this did not make your task easy.  It is probably not too easy settling a matter when you may have a faulty or patchy recollection of events.  It is probably not easy when you have a flawed memory of events having the level of remorse that might otherwise exist if you had a complete understanding of what you had done.  However importantly you have ultimately taken responsibility.  You have pleaded guilty.  There is reference to remorse in some of the references placed before me.  Your interview, although you make a number of denials in it, it never struck me as being suggestive at all of you actually revelling in the conduct.  You were not.  I am prepared to find that you do actually feel some remorse for the crimes that you have committed, and I take that into account in mitigation.

Youth

33.I turn to your youth.  Now this was not the subject of any lengthy direct submissions as it was such an obvious matter.  It was picked up in a number of submissions by your counsel.  You are still a young man, no question about that.  You were younger still when you committed these two offences.  Only 20, almost 21 years old then, and with no history at all before the courts.  Nor any history since.

34.You have a good family background and since leaving school, you have the runs on the board in terms of having an excellent work history which I have already discussed when dealing with your personal details.

35.

The benchmark for sending a young or youthful offender to prison is a high one indeed.  So it should be.  Ordinarily when dealing with a youthful offender, rehabilitation is very much to the fore.  That is because young people are far more impulsive.  They are more prone to errors in judgment than more mature individuals.  They make mistakes, sometimes even very bad ones.  Their moral culpability is generally not as high.  Young people may not think through the consequences of their actions.  Young people also may have less experience of the clouded judgement produced by excess of alcohol.  They have less experience of life and of alcohol and the way that can impact upon their actions.  I am sure you did not think anything through on this night.  You just selfishly acted in the moment.  Had you been thinking clearly I am pretty confident you would have left this young girl alone for a number of reasons and not just owing to her complete lack of interest in you.  That would have been a significant impediment and one that in a sober state you would have recognised and honoured and respected.  That is what I pick up from the references.   Her age was another obvious impediment but so was her relationship as the daughter of a man you worked with.  That friendship was something you valued and yet you betrayed it.  It is clear enough to me that your very large consumption of alcohol and your youth combined very badly on this occasion.  Combining to lead you away from any mature or sensible consideration of what you were doing.  Leading you away from the respectful way you have treated women in the past as evidenced by the many references on that score placed before me.  

You were not considering the serious implications of her age.  You were not thinking of her father or mother or the potential consequences or even her best interests.  You were thinking about yourself.  You were thinking in the moment and not beyond the moment.  All about yourself and satisfying your urges.  People learn from their mistakes.  You will and it will be a very tough lesson as you serve out your prison sentence.

36.Young or youthful offenders are not fixed in their ways as sometimes more mature offenders are.  We as Judges know that young offenders can, and do very often change.  We as Judges also know that prisons can and do often enough damage the prospects of young offenders.  

37.With youth comes the hope that a young offender can be rehabilitated.  There is accordingly a much stronger focus on rehabilitation and so there should be.  Our hope is that a young person can be led away from crime, and from the courts, and back into the community and back into a productive life in the community.  The community has a very strong vested interest in the rehabilitation of any offender but more so a youthful first offender which you are.  It is for these, and other reasons, that less weight is usually given to general deterrence, punishment and specific deterrence.  Much more weight is given to rehabilitation.  Well I have spent a long time discussing these matters but they are pretty much common sense matters.  They are not applied in every case in the same fashion.

38.I apply the principles applicable to the sentencing of a youthful offender as referred to in the cases such as Mills v R, and Azzopardi's case.  Your youth is a very significant factor for my consideration.  However it is not the only matter that I have to consider.  There are many other matters.  To confine a person is always a disposition of last resort and here my only choice in confining you is in an adult prison.  There is something most unpalatable about the confinement of a person who I believe has very decent future prospects as I will expand upon now but your acts leave me with no choice here.  Sometimes a young or youthful offender, even a young first offender, someone who has never been to court before, must be sent to prison.  The weight to be given to youth necessarily will vary from case to case.  The more serious the crime, the more likely it is that greater prominence will be given to deterrence, to protection of the community if applicable, to denunciation and to punishment.  As the level of seriousness of criminality increases, there is therefore, generally speaking, a corresponding reduction in the mitigating effect of youth.

Rehabilitation

39.

I turn then to your prospects of rehabilitation.  Sitting up here as a Judge, it is often enough quite difficult to make judgments as to a person’s future prospects.  It is not difficult here.  There is a powerful body of written material before me in the various character references.  I am prepared to accept that you have very good prospects of rehabilitation.  Looking at the nature and context of these crimes and everything else I know about them and you, I would be surprised if you ever committed an offence such as these ever again.  From the materials placed before me, you are obviously a decent young man who has made an awful error of judgement in the moment.  You are now 23 years of age, and this offending has to be seen in its true context.  You were not acting with your head at all.  You were very heavily disinhibited by alcohol but that cannot operate as some excuse.  It is the context and not greatly mitigatory but it is still relevant for me to consider.  You know what you have done.  You know how you have acted in the face of this significant use of alcohol and that is something you will put to good use in the future.  You have taken responsibility for your conduct.  

I seriously doubt that you will offend again in this or any other way in the future.  You have had this case hanging over your head for quite some time.  It probably should have settled in 2016.  It is a shame it did not.  It cannot be easy to have this sort of matter hanging over your head.  Nor by the way can it be easy for the victim or her family.  It is a great shame the matter was not finalised a long time ago.  A shame for all of you.  For you and your family, for your victim and her family.  There is no joy for any of you living with this matter waiting in the wings as it has for so long. It is very disruptive for all of you.  Think of your victim dealing with this matter in her Year 12 year.  A year that holds enough challenges at the best of times.

40.Nor has it been easy for you to live with the dark cloud of this court case hovering above your head.  It has been hard for you to commit to things as simple as accommodation options.  You could not even plan with confidence as to being free in the community.  It was not assured.  The point is the delay has not been easy for you or her or your families.  In the significant period since you have committed these offences, you have worked hard.  You have stayed out of trouble.  Your conduct fortifies my view as to your having very good prospects of rehabilitation.  Indeed you are a long way down that road already and I am anxious as to disrupting your life but I must.  If only your crimes were not so serious but they are.

Extra curial punishment

41.I take into account that already there have been impacts upon you.  You were assaulted in the workplace by the victim’s father, left the factory and never returned.  Those injuries required medical intervention.  They were not however major which was perhaps lucky for him and for you.  Sensibly you decided not to have the father prosecuted.  You also lost the valuable relationship with your long term girlfriend. You had plans in relation to your future together and they have gone up in a puff of smoke.  These are not matters of great significance on the plea.  They are a long way removed from the impact suffered by the victim and after all, you chose to commit these crimes.  But there have been these ramifications and I take them into account as I am entitled to.

Purposes

42.I am required to take into account current sentencing practices.  However they are but one factor and not a controlling factor to my task.  I have looked at a variety of materials including the Sentencing Advisory Council snapshot number 209 as well as the Judicial College of Victoria sentencing manual including summaries of cases.  See 31.11.5.5.1.  The snapshot demonstrates that the most common prison sentence when prison was selected fell within the band within two to three years. The median sentence, meaning half were lower half were higher, was two and a half years.  They are statistics and statistical measures or terms and I do not pass sentence as a statistician.  Statistics have inherent limitations as do other cases.  The statistics tell me nothing as to the nature of the crime or the personal circumstances of the offender of the impact or features of aggravation or mitigation.  So there are those limitations.  I have looked at the chart of comparative cases handed up by the prosecutor.  But having observed the material within it and some of those cases, none of the cases are on all fours.  No two cases are ever the same.  Some of those offenders pleaded not guilty, some were older, some much older.  The case of Gadd referred to in that material has at least some useful parallels in terms of the offender’s age, 20, the broad age of the victim (she was younger in that case, 14 years and eight months) and the lack of any relationship.  In that case, it was a single act committed upon the young girl.  Gadd had some criminal history but a disadvantaged and severely disrupted childhood which was taken into account in mitigation.  He received three years with a non-parole period of 16 months for that single crime.  The Court of Appeal descended to some of the then current statistical materials in their reasons.  Of course that case was before Boulton as were presumably many of the cases providing data used in the sentencing snapshot that I have referred to.

43.This offence covers a multitude of different activities and circumstances and a range of differing offenders.  It can cover an offender very close in age to the victim's age, say an 18 year old and a 15 year old in a long term and committed relationship right up to people very many years senior, decades older and in positions of great power and advantage over a victim.

44.Well at the end of the day, I have to pass an appropriate sentence in your case.  That outcome is not driven by what has happened in other cases which I have been taken to.  I do though pay regard to current sentencing practices.

45.I have taken into account the submissions made and the exhibits that have been tendered by your counsel in his very thorough and capable plea conducted on your behalf. 

46.You, and for that matter those who support you, must appreciate that as a sentencing judge, there are a large range of matters that I have to take into account.  Whatever some may say, sentencing is always a reasonably complex exercise.  It is not as simple as looking at your best interests.  There are many other matters that the court must have to have regard to.

47.Sentencing is more complex still when dealing with a youthful first offender which you are and one who has committed serious crimes, which you have.

48.I have to take into account the maximum penalty which is ten years as to each of the charges.  I have to pay regard to the impact of your crimes.  It has been very sizeable indeed as you know.  Now your prospects of rehabilitation are a highly relevant purpose here and I have spent some time dealing with them a moment ago.  They are very good but they are not the only matter that I must consider, that is the point I am making.  If they were, well sentencing would be much easier than it actually is.  Punishment is another sentencing purpose.  It cannot be ignored.  You must be punished for your crimes, though I must do so justly and proportionately.  I must also denounce your conduct.  You really should be quite ashamed of yourself.  You have taken your time but I sense that you are a work in progress on that score.  Certainly you are not revelling in the offending and you display some remorse.  Community protection is also a purpose of sentencing.  It is something a court often has to pay very serious regard to in relation to sexual crimes committed upon children.  The reasons for that are obvious enough.  Each case is different.  It is not a matter I pay any significant regard to here, given the nature and context of the offending and my findings as to your having very good prospects of rehabilitation and a very low risk of re-offence.  I do not believe that the community needs protection from you.  They have not in the past and are unlikely to need such protection in the future.  This offending was deeply out of character.

49.A court must also at least consider the need to give weight to specific deterrence.  That is, the need to deter you from offending in the future.  I have considered that purpose of sentencing.  Again though, one has to look at the individual circumstances of the case and of the offender.  I have the context of the offending.  The disinhibition produced by consumption of a large amount of alcohol.  You have taken responsibility.  You have some remorse.  You have stayed out of trouble for over two years.  I have a powerful body of material suggesting this conduct was deeply out of character.  You have very good prospects of rehabilitation and a very low risk of re-offence.  I believe that far less weight needs to be assigned to this sentencing purpose than often may be the case.  

50.I believe that specific deterrence has been achieved in a decent measure already in your case by the process of investigation, being charged and being brought before the court with all the uncertainties of outcome in your life that have existed over what is now a significant period of time since you were interviewed by the police in October 2015 and charged.  I am sure those things have weighed heavily on you.  As I have said, I think you are a very low risk of re-offending in this way again.  Specific deterrence will also be further served by the sentences which I will soon pronounce.  It is not a dominant or large matter in this task at all.

51.There is in my view a sound rational basis to very significantly moderate specific deterrence in this case.

52.General deterrence though is a different matter altogether.  This court must seek to deter others in the community who might be minded to commit these types of offences.  That is the principle that us lawyers refer to as general deterrence.  It is a matter I must have regard to.  It is very often a dominant purpose of sentencing in this sort of case, if not the paramount sentencing purpose.  I think that consideration can at least be moderated to a degree in this case given your age at the time and now, your lack of criminal history and the true context of the offending that is before me.  It is still however quite an important purpose of sentencing in this case.  The message must be sent and it must be received loud and clear by likeminded members of the community that this sort of sexual conduct committed upon children even of the age of your victim will simply not be tolerated by the Courts.

53.I have to pay regard to the gravity of the offence before the court. Here of course there are the two offences.  Well, you were fixed with knowledge of your victim’s age.  You acted very selfishly, no question about that.  Alcohol was the explanation for your acting in the out of character fashion that you did but it is not a defence or excuse.  It is a pretty common factor.  However it is plain that this was not some deeply thought through or premeditated conduct.  There was very little forethought and barely any consideration of the possible or likely consequences.  I am not prepared to find that you have left your room to go to hers with the intention of bringing her to your room and committing these acts.  I am not satisfied of that beyond reasonable doubt.  Once she was in your room you clearly acted with intent and purpose.  It was an incredible error of judgement on this one night.  It was as you say in your police interview, a drunken mistake.  There are mistakes which can be trifling and then there are mistakes such as yours.  Your mistake involved the commission of serious crimes.  You were not that far apart in age, so having some sense of attraction to your victim is not indicative to me of your having some deep seated psychological or psycho-sexual issues at play.  You have committed these unprotected sexual acts with this young girl and in her own house.  The acts were not over swiftly.  She was vulnerable and froze.  There was no actual physical injury though there was some pain.  She should never have been placed in this situation by you.  You had been trusted to stay in that house on this night.  Your crimes which were opportunistic have had a very large impact.  They were not minor crimes by any stretch of the imagination.

54.

I accept that this offending does fall a long way shy of the most serious examples of this crime though by no means does it fall at the lowest levels. 

I am satisfied you were not setting out to act in a predatory fashion.  You were not in some formal position of trust or deliberately using some position of superiority.  Nor were you in your thirties or forties.  There was a six year age gap.  You were only 20, almost 21.  She was 15, almost 16.  It was relatively spontaneous opportunistic offending committed under the cloud of misjudgement caused by your consumption of a very large amount of alcohol.  Be that as it may, it was your choice to drink that alcohol, no-one forced you to.  There is a fair bit said about that in the written outline as there was on the plea.  You may have been surrounded by older people who were drinking.  It was still your choice to drink in the way that you did as it was your choice to commit these crimes.  You did not have any warnings from your past experiences with alcohol to suggest that you may behave in this way.  Your young victim tried to bring you to your senses by mentioning again her age and the existence of your girlfriend.  You waved away those objections.  You engaged in a selfish and disinhibited yet purposeful pursuit of your own sexual gratification.  It is a feature of aggravation that the penetration was unprotected.  The aggravation lies in the risk of pregnancy and/or transmission of disease to your victim.  Happily there is no suggestion that either transpired.  You have pleaded guilty eventually and have not ever offended against the law and in my judgment, you are unlikely to in the future.

55.There was an absolute prohibition on sexual activity with your victim and as I have said already, that is founded on a presumption of harm that exists in this area.  That presumption is more than borne out by the victim impact statements.

56.It is clear from the case of EJA, and from other cases including the case of Abad, that I must have regard to the circumstances in which the acts took place.  There is clearly a world of difference between these acts committed by you upon your victim and those for instance of a much older man or woman in a supervisory capacity, say a teacher setting out to have sex with one of his or her students.  Or a longstanding adult family friend or an employer or a trusted carer or scout leader or priest.  Or acts committed upon a far younger child or over a lengthier period.  Or someone deliberately using a position of trust, or a position of power, or a position of superiority to engage in sexual acts with a minor.  That is not what happened here.  You were drunk, you acted in a way you normally would not have and here we all are, years later dealing with the fall out.  Very unwisely, you were prepared to wave away the illegality posed by her age and engage in the conduct.  Well, you were young yourself.  Young and disinhibited and perhaps not picking up some pretty clear signs from your victim.  Young people can make very bad judgments.  You did on this night.  A shocking mistake and one that you are paying for and will continue to pay for by losing your liberty.  As to which of the sexual acts is to be judged as more serious, that is not determined by merely considering the style of the penetration.  They were each unprotected penetrative acts.  The penile vaginal penetration was for a lengthier period it would seem and it is predominantly for that reason that I draw a distinction in the sentences imposed.

Boulton and s 5 (4C)

57.Each counsel made submissions as to sentence in this case.  Your counsel, Mr Haag, argued that it was open to place you on a community corrections order.  His primary submission was that a standalone community corrections order would be adequate here, but if not, one could be employed in combination with a prison term.  The prosecution argued that a community corrections order was not so open and that I must send you to prison.

58.I am not bound to accept either your counsel submissions or the submissions made on behalf of the Director of Public Prosecutions.  Those submissions placed before me are arguments.  I don’t ignore them but I have to reach my own view as to the appropriate sentence here.  I said I would read all the references again and I have, more than once, including late into the night last night.  I have considered all the submissions made by each party and have anxiously considered the matter.

59.Sending any person to prison is always a matter of last resort for any court.  I need no reminding of that.  Prison has few if any advantages for those sent there and many enough disadvantages.  I must not confine any person unless the purposes for which sentence is imposed cannot be achieved by a community corrections order.  I was taken in some detail by Mr Haag to the Court of Appeal decision of Boulton.  He is not the first counsel to take me to that case.  Indeed it happens in virtually every second plea these days.  That case contains the first guideline judgment of the Court of Appeal.  It was delivered back in late 2014.  Much has changed since Boulton was published back in late 2014.  There has been much water under the bridge.

60.At the time of that decision, the Court had at its disposal the ability to impose a term of up to two years' imprisonment in conjunction with a very lengthy community corrections order.  That has changed from March of this year.  Now there is a limit of up to 12 months' imprisonment to be used in combination.

61.

The Court of Appeal, in a number of cases after Boulton, reminded judicial officers that these community corrections order dispositions are not some get out of gaol free card to be used for every offender and for every crime. 

The Court of Appeal has also, from time to time, queried the way that sentences have been inappropriately imposed to very evidently keep open as an available option the community corrections disposition.  The Court of Appeal has commented on how this has led to artificially compressed sentences being imposed in the courts, particularly this court.

62.They had observed a trend of prison terms hovering at what was the outer-margin of the then-allowable two-year period, with more than the suggestion of this being a device or ploy being used to leave open this disposition, a disposition which, in many cases, should never have even been considered.

63.Really, it boiled down to this, they were saying, this is the Court of Appeal, that there was almost a focus on the community corrections order disposition in circumstances where that very focus subverted the true sentencing process.  Some members of the Court of Appeal were disturbed by such a trend, and called for legislative change, and queried if the orders were having their desired or intended effect (see the case of Basic).

64.Parliament acted.  As I say, some of those recent amendments apply to you.  The reduction of the prison term in combination to no greater than 12 months does apply to my sentencing task. It is a significant change.

65.Section 5(4C) of the Sentencing Act prohibits the imposition of a sentence of confinement unless the court concludes that the purposes of sentence cannot be achieved by a community corrections order to which specified conditions are attached.  A judge must pay careful attention to the purposes for which sentence is to be imposed and consider whether those purposes can actually be achieved by a community corrections order, either a standalone order, or if not, a community corrections order imposed in combination with a prison term of up to 12 months.

66.The Court of Appeal suggested that Judges ask the following question:

"Given that a community corrections order could be imposed for a period of years with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence or the offender which requires the conclusion that imprisonment with all its disadvantages is the only option?"

67.I have no doubt that I must answer that question in this case in the positive.  Your crimes are such that I do not believe it is open to release you on a stand-alone community corrections order.  Your offending demands that you serve a sizeable term of imprisonment.  I do not believe that a community corrections order on its own can adequately reflect punishment, denunciation, and general deterrence. 

68.Your counsel's secondary submission was that a prison term, and I rather took him to be referring to a short sharp term, in combination with a community corrections order, could be considered sufficient to satisfy the various purposes of sentencing.  That such an outcome had some advantages over the alternative being a head sentence and a non-parole period.  On the score of the disadvantages thrown up by prison, your counsel in a very forthright way made very plain that the sort of qualities spoken of in the references and evident from your background and work history would to some extent protect you from the corrupting influences that abound in prison.  That those qualities would not just be shrugged off and would likely survive your imprisonment.  I hope he is right.  I am confident he is actually. Still, I do not underestimate the impact of prison. It is an awful place.  It is an awful place to be sending someone like you.  This is your first taste of it.  It is damaging just to be there and must be avoided if it can be.  It can’t be here.

69.The question is not whether I can see some advantages or benefits in a combined disposition. One almost always can. It is not for me to jump ahead to the disposition with advantages and then work out along the way how to contrive to end at that position. That is not how I am meant to impose sentence. The question is whether it is open to me in the sound exercise of my sentencing discretion to release you on such an order in combination with a prison term. If it is then I must not move to a heavier sentencing disposition. A court cannot impose a sentence that is more severe than is necessary to achieve the purposes of sentencing. See s.5(3) of the Sentencing Act. The trouble is I have only 12 months prison at my disposal.

70.I just do not believe that a combination sentence is available to me in the sound exercise of my sentencing discretion.  Your crimes are too serious.  Such an order would not, in my view give adequate weight to the need to denounce, to punish, or to deter others.  The need for general deterrence is still a significant purpose in this case. 

71.I can tell you this and you may believe it or maybe not, I don’t know.  No Court takes any joy or pleasure in locking up any person, much less a youthful first offender with very good prospects into the future, which you have.  Sadly, sometimes a Court is left with no choice and that is my view here.  Your crimes have left me with no choice.  In imposing the individual sentences, the head sentence and the non-parole period, in each instance, I will take into account the many matters in mitigation. 

72.I also have to proceed on the footing that you will serve every day of my head sentence that I will soon pronounce.  It is not for me to speculate as to what the Adult Parole Board may or may not do.  Whether you will be released on parole is not something I can determine or even speculate about.

Totality

73.I pay regard to the principle of totality here.  These two offences occurred in the same episode.  They were though each serious crimes.  Nor was it particularly brief or fleeting conduct.  No doubt each sexual act had some contribution to the overall impact felt by the victim but there is a sound basis for quite substantial concurrency owing to the timing of the acts.  I have taken a last look at the effect of the sentences that I will pronounce to ensure that they are commensurate with the gravity of your overall offending, and they are not crushing upon you.

Sex Offenders Registration Act

74.As a result of my sentencing you for these two crimes, you will incur obligations under the Sex Offenders Registration Act.  They are not discretionary.  I have no choice over this.

75.Each of these two offences is a Class 1 offence however as they occurred within a period of 24 hours they are treated as a single Class 1 offence.  You must comply and continue to comply with your reporting obligations imposed under that Act for 15 years upon your release from prison.  I will have handed to you shortly a document that will explain to you the many requirements imposed upon you by that Act.  You will note from the document that this Act imposes various other prohibitions and requirements upon you in the future.  One of those is a prohibition upon your gaining any employment in any child related activity and that is very widely defined under the Act.  So to do that would constitute a serious criminal offence, as indeed would virtually any breach of any of your obligations under this Act.  You need to make yourself familiar with the terms imposed by this order, because as I say these are continuing obligations.

76.

It is a long document and I am not suggesting you will sit there now and read it and digest it; you will not.  You will be asked to sign an acknowledgement of your receipt of the notification of these obligations.  That is what you will need to do.  You will get a copy of all of this, you need to study it pretty closely and you need to discuss these matters with Mr Haag who is not here today or

Mr Bolton, who is, because I do not want you falling foul of these obligations and breaching them.  A breach of those obligations is itself a serious crime which is often punishable by a term of imprisonment.  So you will need to familiarise yourself with that document.

77.I might have that taken down to the back of the court now.  Mr Bolton, you understand it is a very lengthy document, he is not going to sit there and digest this now.  But he will need to make himself familiar with it.  This is just his signing an acknowledgement of receipt of obligations.  So would you go down, with my associate and we will have that signed now.

78.I note that your client has signed that notification.

79.I am sorry I have taken so long in dealing with this, Mr Head, but you and your family and others, including the victim and the community need to understand why it is I am doing what I am doing.  I have now reached the point where I will now pass sentence.

Sentence

80.Stand up please.

81.On Charge 1, I convict and sentence you to 24 months' imprisonment.  That is the base sentence.  On charge 2 I convict and sentence you to 20 months' imprisonment.  I direct that three months of the sentence imposed on Charge 2 is to be served cumulatively upon the base sentence.

TES

82.This produces a total effective sentence of 27 months or two years and three months' imprisonment

Non Parole Period

83.I fix a period of 13 months during which you will not be eligible for release on parole.

Section 18 PSD

84.You have been in custody already since my remand of you the other day.  That period of seven days' pre-sentence detention has already been served and that s.18 declaration is to be entered in the court records.

6AAA

85.I said I have taken into account your guilty plea. I have.  Had you pleaded not guilty and been found guilty of these two charges following a jury trial I would have sent you to prison for a longer period.  I would have sent you to prison for four years three months.  I would have fixed a non-parole period of two years eight months.  That declaration is to be entered into the Court records

86.Are there any other matters, Ms Picone or Mr Bolton?

87.MS PICONE:  No, Your Honour.

88.MR BOLTON:  No, Your Honour.

89.HIS HONOUR:  You will go down and see your client downstairs, Mr Bolton?

90.MR BOLTON:  I will, Your Honour, yes.

91.HIS HONOUR:  All right.  How is he travelling in terms of getting any sort of visitors, people on the books?

92.MR BOLTON:  Your Honour, as I understand it, there is some attempt being made by the parents to contact him but it has been - they have experienced some difficulty in doing that.  I have got a list of his contacts which I will seek to give to him.  I have a list here which I seek to give to him which will allow him to make contact with family members and friends who are not listed at the moment with the - - -

93.HIS HONOUR:  I will just wait for that printer to stop.  I am not sure the extent to which the authorities, you wanted to give that to him?

94.MR BOLTON:  I do want to give it to him, yes.

95.HIS HONOUR:  Hand it up, let me just have a look at it.  If you want me to look at it, it is just numbers or something, is it?

96.MR BOLTON:  Names and telephone numbers.

97.HIS HONOUR:  All right.  Is that what he needs to give to the authorities?

98.MR BOLTON:  To the authorities.

99.HIS HONOUR:  Thanks.

100.MR BOLTON:  They go on a list and they can make calls in and he can make calls out.

101.HIS HONOUR:  What about has he had no visits yet or anything like that?

102.MR BOLTON:  No.

103.HIS HONOUR:  All right, it is pretty important that that get underway as quickly as possible, it seems to me.  Is there any reason why he cannot - it is just a list of phone numbers.

104.CORRECTIONS OFFICER:  That's fine.

105.HIS HONOUR:  He can have those, all right, great.  Well we will have that go up to him now please.

106.I will just sign the formal orders.  He had been in custody for the last handful of days.  I think from memory, I made a declaration the other day that he was in custody for the first time, did I not?  Unless there is any reason, I will not repeat that.  Do you need me to raise any matters in terms of custody management at all or not?

107.MR BOLTON:  No, Your Honour.

108.HIS HONOUR:  No, all right, thank you.  I will just look at this formal order and I will sign it and you can then head down and see him downstairs.

109.Yes, well I have signed that order then.

110.I think that completes the matter then.  No other matters at all?

111.MS PICONE:  Nothing further, Your Honour.

112.HIS HONOUR:  All right, Mr Bolton will come down and see you downstairs, Mr Head.  So Mr Head can be removed, thank you.

(Prisoner removed.)

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