Director of Public Prosecutions v Healey
[2021] VCC 1133
•11 August 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-20-01648
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM HEALEY |
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JUDGE: | HIS HONOUR JUDGE JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 July 2021 | |
DATE OF SENTENCE: | 11 August 2021 | |
CASE MAY BE CITED AS: | DPP v Healey | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1133 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence.
Catchwords: Plea of Guilty – Sexual Penetration of a Child Under 16 years – Sexual Assault of a Child Under 16 years – Supply Drug of Dependence to a Child – Possession of a Drug of Dependence – Deal with Property Suspected of Being the Proceeds of Crime.
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited: R v Verdins & Ors (2007) 16 VR 269; [2007] VSCA 102.
Sentence:Five and a half years’ imprisonment with a non-parole period of three years and six months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms N. Burnett | Office of Public Prosecutions |
| For the Defendant | Mr S. Kelly | Stary Norton Halphen |
HIS HONOUR:
1 Adam Healey, you have pleaded guilty to one charge of sexual penetration of a child under 16, one charge of sexual assault of a child aged under 16 years, one charge of supplying a drug of dependence to a child and two charges of possession of a drug of dependence. You have also pleaded guilty to a relevant summary offence of dealing with items reasonably suspected of being proceeds of crime.
2 The maximum penalty for sexual penetration of a child aged under 16 is 15 years' imprisonment. The maximum penalty for sexual assault of a child aged under 16 is 10 years' imprisonment. The maximum penalty for supply a drug of dependence to a child is 15 years' imprisonment and for possession of a drug of dependence in the circumstances of your case is 30 penalty units or 12 months' imprisonment because I am satisfied that your possession was not for a purpose related to trafficking.
3 The facts of the matter are set out in the summary of prosecution opening which was Exhibit A on the plea and forms part of these reasons for sentence.
Circumstances of Offending
4 You were 43 years old at the time of your offending. You had no fixed address and were staying in Melbourne in Airbnbs and other short-stay accommodation.
5 Your victim was 15 soon to turn 16 years of age, her date of birth being May 2004. Your victim was under the care of the Department of Health and Human Services and residing in a residential care unit in Dandenong. You and your victim were both registered on a dating application known as Skout. Your victim was registered under the name Aimee[1] and you were registered under the name Ands.
[1] A pseudonym.
6 Just after midnight on 25 April 2020, your victim contacted you on Skout. You told her, 'Come to the city and I'll shout you as much as you want of anything'. Via Snapchat you asked your victim to send you a photograph of her breasts which she did. You then sent her a photograph of your penis. After the exchange of photographs you asked her how old she was and she told you that she was turning 16 in May. You said that the both of you would have to keep your activities secret as you could get into big trouble.
7 You continued to try to persuade her to come into the city to have sex with you. You arranged for her to come into the city later that evening. You arranged for an Uber to pick her up in Dandenong at 7.45 that evening and take her into the city. You arranged to meet at the Australia 108 apartments located at 70 Southbank Boulevard, Southbank. You booked an apartment there under a false name using a false driver's licence.
8 Whilst you were in the apartment you provided your young victim with GHB and methamphetamine, that is part of Charge 3, and you engaged in sexual activity with her which both of you filmed on your phones. The downloaded videos on the telephones depicted you penetrating your victim's vagina with your fingers for less than five seconds as well with a purple sex toy for less than a minute. That forms the basis of Charge 1. The videos also depict you rubbing your penis on her vagina which forms the basis of Charge 2.
9 Shortly after midnight on 26 April 2020, you booked Apartment 3713 at Manhattan Apartments in Rose Lane, Melbourne, through Airbnb using the name Scott Patton. Just after 10 o'clock in the morning, you and your victim left the Australia 108 apartment and went to the Manhattan apartment. At that apartment you supplied your victim with more GHB and methylamphetamine, that is part of Charge 3. She fell asleep. She woke with you on top of her apparently and in her words she went into 'psycho mode' and pushed you off.
10 She left the apartment by herself at 3.50 am on 27 April 2020. She left with your telephone and she left her telephone at the apartment. After leaving the apartment she met a person who assisted her to get back to her home. When she arrived at her former residential care unit in Seaford, she was drug‑affected and delusional and was subsequently admitted to Monash Children's Hospital in Clayton.
11 At the hospital one of her workers saw your telephone and turned it on. The worker saw that the telephone contained images of your victim engaging in sexual activity with a much older man, obviously, so that worker turned the telephone off and arranged for it to be handed to the police. The police also recovered your victim's telephone which she had left at the Manhattan apartment. Her telephone also contained images of her engaging in sexual activity with you.
12 You were arrested on 26 May 2020 in William Street, Melbourne at an apartment you were residing in. During a pat down search of you police located a small bag containing methylamphetamine in your pocket. During a search of the apartment police located a bottle that contained GHB. The police also located other items in the apartment which are the subject of Summary Charge 13. I will not list them all. They are listed in the summary of prosecution opening which is Exhibit A.
13 You participated in a record of interview. When the police asked you to tell them about your contact with your victim you told them that your victim and her friend, Tasha, tried to scam you online so you blocked them. You told police that you met your victim in the city once for about one or two hours and she asked you for GHB and Xanax. You told police that you took your victim up to an apartment in Rose Lane that you booked through Airbnb but nothing of a sexual nature happened. You said you may have used drugs but that you could not remember. You also told the police that you believed your victim was 18 years old because you met her on Skout and you have to be 18 to be registered on Skout.
14 Police asked you if you stayed at Australia 108 apartments with your victim and you told them you could not remember being there. You could only remember being with her in Rose Lane. When police showed you photographs of you and your victim at Australia 108 apartments you told the police that you have a poor memory and that you could remember staying there but could not remember the victim being there.
15 When police alleged that you had sex with your victim at those apartments you requested to speak to a lawyer and the interview was suspended. Upon resumption you answered, 'No comment', to most of the allegations. However, you denied knowing your victim's age, stating that at all times you believed she was 18 and you questioned the authenticity of the messages from her phone to you stating that she was 15.
16 You also told police that you could remember Rose Lane and that nothing of a sexual nature happened there. However, you told police that you could not really remember being at the Southbank apartment and that it was possible that something of a sexual nature happened there. You admitted using methylamphetamine and GHB but could not remember giving any to your victim.
Gravity of Offending
17 The victim did not provide a victim impact statement to the court. Nevertheless, in assessing the general gravity of the offence, I have regard to the fact that sexual offending against children is now well understood to have the capacity to cause enormous harm to those subjected to it. It is often the case that the harm caused to a young person such as your victim in this case does not become manifest until some time later. There are legislative schemes in place to protect children from such harm, even to protect them from themselves, of course.
18 I sentence you on the basis that the conduct engaged in by you is inherently harmful to a vulnerable individual such as your victim. Sexual offences involving children are inherently serious. Whenever a sentence is imposed for such offences, the court must have regard for the protection of children from sexual exploitation. In your case, there are several matters that I have taken into account and assessed in assessing the relevant gravity of the offences on the indictment.
19 Whilst you met your victim through an adult dating application, you learned her age before the meeting and you arranged for that meeting to be a sexual meeting and one in which you would supply her with drugs in connection with sexual activity. You went to great lengths to arrange for the meeting, including arranging her Uber travel and booking the rooms.
20 The age difference between you and the victim was significant, being 28 years. The victim was particularly vulnerable being a young person under the protection of DHHS and living in a residential care unit. Whilst this may not have been apparent to you and on the evidence it was not, it is an objective circumstance that I take into account when assessing the gravity and in all the circumstances, given your knowledge of her young age, the context of drug use and the circumstances of your meeting with her, it was apparent to you that she was a young vulnerable individual.
21 The physical acts the subject of Charges 1 and 2 are of relatively short duration, however, they were performed upon a vulnerable victim, 28 years your junior, in circumstances where you sought to supply her with drugs and abuse her for your own sexual gratification whilst filming the episode on your phone.
22 On your behalf, it was raised that certain aggravating features that other cases perhaps do feature are not present in your case and I accept, for example, this case does not involve a breach of a relationship of trust. I also accept that the offending was not achieved through any violence or threats of violence.
23 The serious aspects of your offending are those that I have set out.
24 The victim was aged 15 years and 11 months at the time of the offending and as such was at the upper end of the age range for offences of this type. As was submitted by the prosecution and of course it is the case, that her being under 16, she is still afforded the protection of the law. It is conduct which carries a significant maximum penalty and it is one for which you were well aware of her age. As I have pointed out, the age disparity, in particular, is a serious matter.
25 The charge of supplying a drug of dependence to a child is a serious offence as reflected by the 15 year maximum penalty. For the purposes of this charge, a child is a person aged under 18. Your victim was 15. The drugs you supplied are dangerous substances. Your commission of this offence is a relatively serious example of the offence. I have been careful to avoid doubly punishing you for the overlap of criminality due to the sexual offending occurring in the context of the supply of drugs.
Personal Circumstances
26 There are a number of matters in mitigation advanced by your counsel, Mr Kelly, on the plea. In a helpful written outline of defence submissions, he summarised those matters and I will not go through each of them now.
27 In relation to your personal history, I was told that you are the eldest of three children and were raised in a number of townships throughout Victoria. You are unsure as to why you moved around so much in childhood but it is clear that you did.
28 You did report a positive childhood with no mistreatment or exposure to violence or substance abuse in the family home. Your parents separated when you were around the age of 14 years of age and you went to live with your father whilst your two younger sisters resided with your mother. Consequently you have drifted from your mother and sisters and have not had a relationship with those members of your family for many years.
29 It was apparent from the report of Dr Barth that feelings perhaps of abandonment and a lack of attachment to your mother have impacted upon you over the years and perhaps been an aspect of depressive illness in your teenage years and gravitation towards illicit substance abuse. I was told that your father remained supportive of you during your period of remand.
30 You completed high school and commenced a Bachelor of Business and a Bachelor of Teaching but you did not complete either degree. You have completed a chef's apprenticeship and were gainfully employed in various restaurants throughout regional Victoria and New South Wales. However, you suffered a workplace injury to your back in 2001 and you have not been employed since that time. You are prescribed medication for pain relief.
31 The back injury is described as a chronic back injury, giving you chronic back pain. It is a matter that is relevant to considering your experience in custody. It is also a matter that has been relevant in understanding your progress through life and problems you have encountered since that workplace injury in 2001.
Verdins Principles
32 Your counsel placed significant reliance upon the report of Dr Matthew Barth that was tendered on your plea. In relation, in particular, to a submission relying upon the authority of Verdins that in your case there was occasion to moderate moral culpability due to the findings of Dr Barth.[2]
[2]R v Verdins & Ors (2007) 16 VR 269; [2007] VSCA 102.
33 In particular, in the passage of the report that was relied upon by your counsel, Dr Barth opined:
‘It…is well recognised that chronic depressive symptoms have a detrimental impact upon the sufferer’s capacity for clear reasoning and decision making. Principally, they result in a slowing of cognitive processing which renders the processes of decision making, weighing options and anticipating the likely consequences of actions more difficult for the sufferer. There is a tendency for the individual to focus on the most salient solutions to a given problem and to find it hard to generate alternative courses of action to manage problematic situations.’[3]
[3] Dr Mathew Barth, Psychological Assessment of Mr Adam Robert Healey dated 9 June 2021, page 6.
34 Further, Dr Barth opined:
‘Given the long-standing and chronic nature of Mr Healey’s mental-health issues, it would seem reasonable to conclude that he was labouring under these effects at the time of the offending and that it impacted his ability to exercise appropriate judgement. Nevertheless, while his mental-health issues have contributed to his poor decision-making and limited social reasoning skills, there was no indication that he was unable to understand (albeit in a concrete and simplistic manner) the wrongfulness of his actions.’[4]
[4] Ibid, page 7.
35 With respect to your mental health condition upon your time in custody, Dr Barth stated:
‘Finally, I would note that, when considering Mr Healey’s chronic depressive symptoms, his poor social skills and his remedial coping skills, it is likely that the custodial setting will continue to prove challenging for him in the long-term. While almost all prisoners experience a degree of emotional turmoil following their final sentence, in Mr Healey’s case this would be likely to be rendered more intense by virtue of his long-standing mental-health problems. To that extent, any period of imprisonment is likely to be relatively burdensome for Mr Healey when compared to prisoners who do not suffer with his mental disorder.’[5]
[5] Ibid, page 11.
36 The prosecution took issue, in particular, with the submission that all of the limbs of Verdins, those relating to moral culpability and general deterrence as well as hardship in custody, are enlivened. In particular, they focused upon what the prosecution advance as a lack of a nexus between the findings of Dr Barth as to depressive symptoms and the commission of the offence.
37 The overlay of drug use and its role in the offending was also problematic and a difficult one to unravel from the mental health aspect. In furtherance of that opposition, the prosecution also relied upon your statement to Dr Barth that, 'None of this would have happened if I wasn't using drugs'.[6] The prosecution submitted that your judgment and thought process was severely affected by the use of illicit drugs.
[6] Ibid, page 6.
38 The prosecution also relied as relevant to this assessment Dr Barth's findings essentially at paragraph 42 and 43, in relation to your egocentric approach to relationships and the finding that your conduct with the complainant, despite a gross violation of personal boundaries, displayed the presence of deviant sexual arousal patterns towards the adolescent complainant and prominent offence supporting cognitions regarding her sexual promiscuousness.
39 In considering this matter and the findings of Dr Barth, I have concluded that the required nexus between your mental impairment and the offending is not such as to enliven the moderation of moral culpability as envisaged by Verdins grounds 1 and 2.
Matters in Mitigation
40 That is not to say that I do not take into account your development through your early years and difficulties you have had in life as a result of mental illness, mental impairment, in particular depressive illness and its relationship with a vulnerability to drug use and abuse. It has been clear that substance abuse has been an extremely significant matter in your criminal history and your disposition throughout life and helps explain how you come to be in this court with the history that you have, to a significant degree.
41 That substance abuse clearly has a relationship with your psychological make-up and the matters identified by Dr Barth. I take those into account in a general way in assessing your moral culpability overall, as those factors, that is the mental health issues and the substance abuse issues, help explain your responses and your experiences throughout life which have played a part in making you the person you are today. They fall short of the Verdins analysis in relation to moral culpability.
42 I accept that due to the matters raised by Dr Barth as to your chronic depressive symptoms, your poor social skills, your remedial coping skills, that the custodial setting will continue to prove challenging for you and in fact, your experience in custody will be more difficult because of those factors than it would for a person who has not experienced those factors and I mitigate sentence to some degree accordingly.
43 It was submitted that your plea of guilty was an early one. That is not contentious and you are entitled to a significant discount as a result of your plea of guilty. It also comes at a time during the pandemic where the utilitarian value of the plea of guilty is enhanced.
44 I also take into account that your experience on remand has been one during the pandemic where that experience of custody is much harder than at previous times because of the restrictions in place, including restrictions on visits, movement and activities during incarceration.
Criminal History
45 You have a lengthy criminal history although it is not one that discloses offending of the like that forms the basis of Charges 1 and 2 on this indictment. It is a history that is reflective, however, of your inability over a long period of time to deal with what is a significant substance abuse issue and associated criminality.
46 It is noted in the materials that you have limited insight into the extent of your substance abuse problem and, more concerningly, limited insight into strategies to address it into the future. This is the most concerning aspect when I consider your prospects of rehabilitation.
Prospects of Rehabilitation
47 In considering your prospects of rehabilitation, I have also taken into account the matters I have referred to from Dr Barth as to your lack of appropriate insight into your interaction with the complainant. I have referred to those paragraphs 42 and 43 of Dr Barth's report. These matters are also accepted and touched upon in your counsel's helpful outline at paragraphs 31 to 34.
Standard Sentence Offences
48 Charge 1 and Charge 2 are standard sentence offences. The standard sentence for Charge 1 is six years' imprisonment. The standard sentence for Charge 2 is four years' imprisonment. The standard sentence is the sentence for an offence taking into account only the objective factors affecting the relative seriousness of that offence is in the middle range of seriousness. I have been guided by the standard sentences in arriving at the sentences I have imposed for the standard sentence offences.
49 The sentences I impose on Charge 1 and Charge 2 are less than the standard sentences for those offences, due to the matters in mitigation I have allowed in my assessment of where your offending sits in the range. They are serious matters. General deterrence and denunciation are very important sentencing considerations and I take them into account, as I do the specific deterrence in relation to your case. I have also taken into account your prospects of rehabilitation.
Sentence
50 I sentence you as follows, Mr Healey:
51
In relation to Charge 1, you are sentenced to be imprisoned for
four and a half years as the base sentence.
52 In relation to Charge 2, you are sentenced to three years' imprisonment.
53 In relation to Charge 3, you are sentenced to three years' imprisonment.
54 In relation to Charge 4, you are sentence to one month imprisonment.
55 In relation to Charge 5, you are sentenced to one month imprisonment.
56 For the relevant summary offence, one month imprisonment.
57 In relation to Charge 2, six months of the sentence imposed on Charge 2 is to be served cumulatively on Charge 1 which is the base sentence.
58 Six months of the sentence imposed on Charge 3 is to be served cumulatively on Charge 1 which is the base sentence.
59 That makes a total effective sentence of five and a half years' imprisonment. I set a non-parole period of three years and six months.
60 I declare that you have served 347 days as pre-sentence detention in relation to this matter.
61 Pursuant to s6AAA, I indicate that had you not pleaded guilty to these matters I would have imposed a total effective sentence of seven years' imprisonment with a non-parole period of five years.
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HIS HONOUR: Now are there any orders sought for disposal or forfeiture?
MS BURNETT: Yes, Your Honour. There are applications for both forfeiture and disposal.
HIS HONOUR: All right. I don't believe I have those. Well perhaps if we can locate those. I'll need to have a little look at what's for forfeiture and what's for disposal but there's no opposition to those orders, is there, Mr Kelly?
MR KELLY: There's not, Your Honour.
HIS HONOUR: All right.
MS BURNETT: Your Honour, I understand they may have been previously emailed to the court. In respect of a disposal it relates to the drugs, the clothing - - -
HIS HONOUR: Sorry, look actually I do – yes. No, it wasn't on the opening but I do have them here. Sorry. All right. Yes, I've got the disposal order, schedule and disposal order and I've got the forfeiture order with a schedule attached as well. I make both those orders. I'll sign them now.
MS BURNETT: Yes, Your Honour.
HIS HONOUR: All right. I've got them here anyway. All right. I'll sign them now. All right. Is there anything else?
MS BURNETT: There's also the Sexual Offenders Registration Act - - -
HIS HONOUR: Sorry, yes. I've got a note of that, 15 years. Yes, sorry. I've got that written down and I've skipped over that. Yes. You're liable to registration under the Sex Offenders Registration Act and the period of registration in your case is 15 years. Those documents will be prepared and forwarded to you for your acknowledgement and signature. I apologise for that. Nothing else I've missed?
MS BURNETT: No, Your Honour.
MR KELLY: No, Your Honour.
HIS HONOUR: Thank you. Adjourn the court.
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