Director of Public Prosecutions v Healey
[2023] VCC 1960
•27 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00888
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA HEALEY |
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JUDGE: | BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 October 2023 | |
DATE OF SENTENCE: | 27 October 2023 | |
CASE MAY BE CITED AS: | DPP v Healey | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1960 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence
Catchwords: Sexual penetration of a child under 16 – plea of guilty – offender under 18 – significant delay – rehabilitation
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:
Sentence: Community Correction Order for a period of 12 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Malobabic - plea Mx Rattray - sentence | Office of Public Prosecutions |
| For the Accused | Mr Michael Smith |
HER HONOUR:
1Joshua Healey on 25 October 2023 you pleaded guilty on indictment P10328629 to one charge of sexual penetration of a child under 16.
Circumstances of offending
2The circumstances of your offending were set out in the prosecution opening and this document was tendered on the plea.
3In short, your offending occurred on one date, 20 December 2009, which is almost 14 years ago. Mary O’Neill[1], the victim of your offending, was a distant relative with whom you had had a teenage relationship for approximately three years. Ms O’Neill lived with her grandparents in Frankston at the time.
[1] A pseudonym
4In December 2009 you met Ms O’Neill at a family function in Albury.
5Your relationship commenced soon after and ended sometime in 2013. Both families were aware of the relationship and employed an open-door policy in the bedroom at the family home. Additionally, there were conversations about the victim's age.
6You promised the victim's grandma that you would be respectful and that nothing would happen until the victim turned 16.
7You visited the victim at her grandparent's house almost every Sunday, where you would have lunch with the family, before being driven home. Those visits stopped when you turned 18 and got your driver's licence.
8In the lead up to the offence you put pressure on Ms O’Neill to have sex. You planned how to have sex without getting caught and told Ms O’Neill to wear a dress or a skirt to make it easier.
9Between 20 December 2009 and 31 January 2010, you visited Ms O’Neill at her parents' home. You went to her bedroom and sat on her bed together, the door remained open.
10Ms O’Neill's grandparents went outside for a cigarette. You told the victim to lie down. You lifted her skirt, pulled down her underwear, you climbed on top of her and put your penis inside her vagina and had sex with her. Ms O’Neill started to cry and you said the pain would go away soon.
11Her grandparents came back inside and you stopped. Ms O’Neill went to the toilet. You both went back into the dining area as if nothing had happened. You were 17 years of age at the time of the offence and Ms O’Neill was 13.
12In 2013 Ms O’Neill started working at John Paul College as a youth minister and became aware of the age of consent. She told her friend and her boss what had happened. She also told her grandmother, who became angry that you had lied.
13On 16 April 2020 Ms O’Neill confronted you via Facebook. You tried to contact her in response but she did not answer your call.
14On 25 March 2022 Ms O’Neill reported the matter to police and completed her statement on 2 May 2022.
15On 24 April 2022 Ms O’Neill made a pretext call to you. You did not deny the allegation. You said how much you adored her, how you loved each other, and that you did not mean to hurt her.
16On 17 October 2022 you were arrested and interviewed at the Frankston police station, and you made a no comment record of interview.
Victim impact statement
17Now Ms O’Neill read her victim impact statement to the court. She spoke of ongoing nightmares, feeling unsafe in relationships and struggling to put herself first in setting boundaries. Further, Ms O’Neill described that what occurred has led to years of relationship breakdowns due to a range of mental health issues, including a debilitating eating disorder.
18The deep impact of what you did has caused Ms O’Neill to engage in continuous therapy. Ms O’Neill also mentioned that she will not allow the offending to define her, and that she refuses to blame herself anymore.
19So I hope that going forward through the court process - and this is to you, Ms O’Neill - enables you to move forward in your healing and will give you some closure. You have been vindicated and your abuser has accepted his wrongdoing. Ms O’Neill, your voice has been heard by the court and there will certainly be accountability and consequences for the person who has caused you harm.
Nature and gravity of offending
20In terms of nature and gravity of the offending, in Clarkson v The Queen, the Court of Appeal held that under the legislative scheme a child under 16 cannot consent to sexual penetration. This prohibition both protects the child from harm that can come from premature sexual activity and deters adults who would contemplate having sex with someone under the age of 16.
21The prohibition is founded on a presumption that premature sexual activity will cause long-term physical and psychological harm and is unaffected by the presence of apparent consent.
22The factors must be balanced with the fact that at the time of your offending you were only a child yourself, being 17 years of age.
23The proper approach to sentencing in cases such as yours has been discussed by the Court of Appeal on many occasions. In the case of Boland the Court said:
'Decisions of this Court in R v Nutter and R v Better recognise that where offences recognise that where offences which have been committed while an offender is a child or immature and are not prosecuted until many years after the event, there is good reason to mitigate penalty, or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending. Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the offender's moral culpability, take into account that what was done was done as a child, or as a person of immature years, and not as an adult or a person of greater maturity. Counsel for the appellant is also correct that general deterrence ordinarily has a lesser role to play in the sentencing of children and immature young people than in the case of mature adults, and that it is significant that the appellant has not re-offended in more than 24 years.'
24So further, I have considered these principles in light of the opinion of Ms Louder, the psychologist who assessed you and provided a report to the court. Ms Louder was of the opinion that:
'Whilst Mr Healey fully acknowledges upon reflection this relationship according to the law was not appropriate, and displays remorse for any harm caused, his sexual actions were not beyond those of a normal 17-year-old male, coming into a time in their life when sexual desires and hormones increase dramatically.'
25So Mr Healey, to be clear, your offending is serious as was appropriately conceded by your counsel. The maximum penalty applicable to your offending is an important yardstick when considering the objective seriousness. In this regard the maximum penalty for your offending is 10 years' imprisonment.
26Further, in assessing the nature and gravity of your offending, I take into account that at the time of your offending the victim was 13 years of age and you were 17. You were in a loving relationship with Ms O’Neill and you had promised that you would be respectful of her. Instead, on this one occasion, you pressured her to have sex. Your offending is aggravated by the fact that it occurred within the family home, a place where she should have been safe and protected.
Delay
27In general, delay can be an important mitigatory factor in sentencing. There are two potential effects of delay: first, there may be considerations of fairness; and second, there may be considerations of rehabilitation. In my view, both limbs have application in your case.
28First, in terms of rehabilitation, your offending occurred in the order of 14 years ago. So since that time, you have been a law-abiding citizen. Further, it is clear from the numerous character references provided by your counsel, that you have become a well-respected and hardworking man. These character references also identify the numerous protective factors you have around you and will continue to have.
29In addition, you have used this time meaningfully, engaging with a psychologist to discuss the impact of your offending on your victim. You have displayed rehabilitation.
30Second, given that you were confronted by the victim in April 2020 and arrested in October 2022, this matter has been hanging over your head for some time. No doubt it has caused a considerable amount of stress and anxiety. A further aspect to the delay in this case is that it is apparent how much Ms O’Neill has suffered over the years.
Plea of guilty
31I accept that you entered your plea of guilty at the earliest opportunity. This is a mitigating factor in your favour, in that it shows you have accepted responsibility for your offending.
32Most importantly you have spared the need for Ms O’Neill to relive the traumatic event by giving evidence. Your plea has significant utilitarian value as it has spared the court the time and expense of what would have been an emotional and difficult trial.
33Further, I take into account the benefits of this plea in the context of the court backlog, which though now easing, was still a relevant issue when your matters entered the court process. Consistent with the principles enunciated in the case of Worboyes, your plea will attract a greater amelioration of sentence. Accordingly, I propose to allow a significant sentencing discount.
34Your plea of guilty also highlights the remorse you have shown towards your victim. There is other evidence of remorse in your case. Importantly, Ms Louder stated:
'It is my professional opinion that Mr Healey is a law‑abiding man with a healthy view on life and strong moral and community values. I have absolutely no concerns on any level that he will re-offend and believe his levels of shame and stress surrounding this case further ensure he will not re-offend.'
35Your partner, , stated that you were feeling contrite towards Mary and your actions all those years ago.
36However, the most powerful evidence of remorse is your letter of apology, which I accept is heartfelt and genuine.
Personal circumstances
37As to your personal circumstances, you were born in Halifax in the United Kingdom and migrated to Australia with your family when you were 18 months' old. You have one younger sister.
38Upon arrival in Australia your family settled in Preston, where your parents purchased a property. Your mother worked at a glass leadlight shop. Your father was a bricklayer.
39There was a breakdown in the relationship between your parents which led to separation. You recall witnessing some family violence being your father assaulting your mother. You moved into your maternal grandparents' home before moving to Ferntree Gully with your mother and sister, and this was to ensure you were closer to extended family.
40As a child, you would spend time with your father every weekend. Your father would pick you and your sister up from Ferntree Gully and you would spend the weekend together. Due to attending social functions on weekend, the time spent with your father lessened as you became a teenager.
41Your mother remarried when you were in Year 7 and you had some difficulty adjusting to life with your stepfather. It would appear, given the contents of the testimonial from your stepfather, that you now have a strong bond and relationship.
42In the early years your family suffered from financial difficulties, these were compounded by the fact that your biological father resented paying child support.
43Whilst at school you were the victim of bullying, both verbal and physical, which was predominantly as a result of bullies targeting your English accent.
44You ultimately finished Year 12 and have engaged in other studies but completed no further degrees or certificates.
45Since finishing school, you have been gainfully employed. You started employment with Tasty Trucks food delivery service, and you are currently employed as a process technician with Dulux.
46You commenced an electrical apprenticeship at another organisation but lost this job at the commencement of the COVID pandemic.
47You have been in a successful relationship with Ms Marchese for the last seven years and during this time you and Ms Marchese have purchased a home together, and are committed to a continued life together, and are hopeful of one day starting a family.
Sentencing principles
48The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.
49Given the circumstances of your particular case, that is you were a child at the time of the offending, I consider that general deterrence should be significantly moderated. I consider specific deterrence has little role to play in the sentencing exercise due to your lack of prior convictions, your genuine remorse and the rehabilitation you have demonstrated since this offending occurred. You have no prior or subsequent criminal history and have been a law-abiding citizen.
50Ordinarily, the sentencing exercise requires consideration of the prospective rehabilitation of an offender. However, due to the unique circumstances of your case, I have before me the rehabilitative process in which you have engaged. You are now seeing a psychologist, which, I note, is partially to help you deal with issues surrounding your mental health. However, an important aspect of your engagement with the psychologist is that you have used the sessions to engage in discussions about how your offending has impacted and indeed continues to impact your victim.
51I take into account the sentencing guidelines referred to in s5 of the Sentencing Act,[2] where relevant to your case. Ultimately the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case. The principles of proportionality and parsimony are also very important considerations here. They require me to do more than is necessary to appropriately punish you for your offending in the particular circumstances of your case.
[2] Sentencing Act 1991 (Vic).
52In sentencing you I have had regard to current sentencing practices and the sentencing landscape for the sentencing of cases such as yours. I have weighed the nature and circumstances of your offending, the impact of your offending upon Ms O’Neill, your personal circumstances, the written testimonials tendered and the psychological report of Jacqui Louder.
53I have come to the view that this offending was an aberration of an otherwise decent, honest hardworking young man that was committed when you were immature and still a child in the eyes of the law. For these reasons and also because a conviction is likely to have a marked impact on your future prospects I have decided to impose penalty without conviction.
54Mr Healey if you could please stand. In relation to the charge of sexual penetration of a child under 16 without conviction you are placed on a Community Correction Order for a period of 12 months. The only special condition of this order is that you perform 125 hours of unpaid community work. Given this is the only condition once you complete the hours the order will expire.
55In addition, to that condition, there are standard conditions that you must comply with. The first and foremost of these is that you are not to commit another offence punishable by imprisonment for the period of the Order, which is 12 months. You need to report within two working days of your release from custody to your nearest Corrections office, which I understand will be Ringwood CCS.
56You are required to advise your supervising Corrections Office of any change of address where you are living or working within two clear working days. And it is a term of all Community Correction Orders that you must submit to visits as directed and obey the instructions and directions of the Corrections officer and you cannot leave the State of Victoria without prior permission.
57Mr Healey if you reoffend you will breach the Correction Order, if you do not comply with the conditions, you will breach the Correction Order, and if you do that you will come back before me, and you may be resentenced in relation to the original charge.
58I can only place you on a correction order if you agree, so do you understand what is involved in such an order?
59OFFENDER: I agree, Your Honour.
60HER HONOUR: All right. And you agree to - or you consent?
61OFFENDER: I agree, yes. Yes, I do, Your Honour.
62HER HONOUR: So, Ms O’Neill, I wanted to say thank you for your participation in the process. I hope that you understand the process and ‑ ‑ ‑
63COMPLAINANT: Absolutely, yes.
64HER HONOUR: I am pretty confident that Ms Malobabic and Mr Rattray would have talked you through, yes, what to expect it's good that you've been involved in the process, it's good for me to be able to see, the impact that it's had on you and to take that into account. So I wish you all the best in the future. I hope that you can move forward and that this is you know, a chapter that you can close off and I hope that you feel that you've been vindicated, you know that there's been an acceptance that wrongdoing has occurred to you. So hopefully that's important to you.
65COMPLAINANT: Thank you so much. Look, Judge Blair, I really appreciate your time. I appreciate the fact that the court has listened to me. I think that's probably the most important thing for me and yeah, for sure, it's a chapter closed, I can put it behind me and move forward with my partner and my dogs and the kids, so yeah, for sure. Thank you so much and yeah very, very grateful, thank you.
66HER HONOUR: Thanks, Ms O’Neill, that's great. Okay and to you, Mr Healey, I wish you all the best. I'm quite confident you will be able to do the order, given your work ethic.
67OFFENDER: Thank you, Your Honour, thank you.
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