Director of Public Prosecutions v Howard (a pseudonym)

[2024] VCC 558

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL HOWARD  (a pseudonym)

---

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	23 February 2024
DATE OF SENTENCE:	30 April 2024
CASE MAY BE CITED AS:	DPP v Howard (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 558

REASONS FOR SENTENCE
---

Subject: Criminal law - sentence   

Catchwords:              Plea of guilty to one charge of sexual penetration of child under 16 and one summary offence of supplying liquor to child under 18 – complainant aged 14  - accused then aged 18 now aged 20 suffers autism and other disorders – absence of remorse consistent with autism – young offender – rehabilitation important.    

Case cited:Verdins v R [2007] VSCA 102

Sentence:                   9 months YJC        

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms J. Piggott	Office of Public Prosecutions
For the Accused	Mr J. Murphy	Richard Davis & Associates Lawyers

HER HONOUR:

1Michael Howard[1], you have pleaded guilty to one charge of sexual penetration of a child under the age of 16. You have also pleaded guilty to a summary charge of supplying alcohol to a person under the age of 18.

[1] A pseudonym.

Background

2The complainant was aged 14 at the time of the offending. You apparently knew her from secondary school, where you were in the same house group. At that time, she was in Year 7 and you were in Year 11. You left school during that year, 2021, and began work in a fish and chip shop. At the end of that year you were in contact with the complainant through mutual friends.

3In late December 2021 over the course of a week, you frequently told the complainant via telephone calls and messages, that you needed her and loved her, and that if she did not go to see you, you would kill yourself. The complainant did not want to visit you as she was scared, and made excuses for not going.

The offending

4On Friday 28 January 2022 you were still messaging her, as well as her friend, who was concerned you would kill yourself, because she was getting similar messages from you. The friend was so worried that she contacted the complainant and convinced her to sneak out of her house and go to see you.

5The complainant did sneak out of her house and met you in the nearby town at about 11 pm that night. You hugged her and told her you would kill yourself if she did not go with you to your caravan where you were living, at the back of your parents' house, to drink alcohol with you.

6You told her that you had cut yourself again and that you were, in your words, 'feeling shit'. The complainant saw deep cuts on your arms, that were bleeding. She felt compelled to go with you because of what she described as your anger issues; she feared that you would become angry and do something to yourself. You then went together to your caravan, where you left her briefly while you obtained alcohol from the house. During this time the complainant sent Snapchat messages to a friend telling her she was worried.

7You returned from the house with a bottle of Bundaberg Rum. The complainant asked to pour her own drink, which she did. After drinking this for half an hour you gave her a can of double whisky and cola, but the complainant did not want to drink it as she had not seen you open it. She began drinking it but did not finish it, as she was feeling as if she could not move and needed to lie down.

8You then took her phone away from her. By this time the complainant could hardly hold the can and kept spilling it. She fell back onto your bed with her legs hanging over the edge. She tried to get up but she could not. You turned off the lights and lay down next to her on the bed. She kept telling you she was very drunk, and you replied 'Yeah I know'.

9You took off her shorts and underwear and penetrated her vagina with your penis. The complainant recalled trying to get up and move, but you moved her back. The complainant thought she passed out for a bit, and then tried to roll off to the side. You grabbed her and tried to turn her, but she could not move or keep herself upright. In doing this you caused bruising to her left thigh.

10With her face in the pillow, she felt like she was suffocating. She could not turn her head or face to breathe. You told her to stop moving and pushed her back down. You then grabbed her and kept having sex with her.

11You turned her over onto her back and removed the condom you had been wearing, and ejaculated onto her chest and stomach. The complainant remained lying on the bed and 'passed out'. When she awoke she got up, and you opened the door of the caravan for her. It was about 4 am and she walked home.

12On the way home she was crying and spoke on her phone to a friend, telling her that something had happened, but she could not say what. Still crying, she rang her mother and told her she had been drinking and had sex but had not wanted to.

13Early the next morning she gave her mother the clothes she had worn the day before and her sister took the clothes to the police who had them tested. The result was that the T-shirt the complainant had been wearing had spermatozoa on the front, which matched your DNA.

14Between 29 January 2022 and 6 February 2022, you sent the complainant 56 text messages confessing your love for her, asking you to meet her, and saying:

'If it is about last night, I’m sorry' and '…give me a chance to fix it..'

15You asked her not to talk about it, but admitted that you yourself had told someone about it. You wrote to the complainant:

' I am sorry (…) like I've been saying I was on drugs and drunk and I ruined you. You don't deserve this.'

16You called her 15 times between the dates that I have mentioned, but she did not answer. Eventually on 31 January you wrote to her saying: 'You finally won'. You went on to say you had made the worst mistake, you had done a really bad thing, and you will never forgive yourself.

17Over the next week the complainant's father noticed that her behaviour deteriorated and on 9 February she argued with him about this.  During the argument she disclosed to him what had occurred on 29 January. He took her to the police station and she made a VARE. Police went to your home and executed a search warrant. You were arrested soon afterwards. You were found to be unfit to be interviewed that day, and later made a 'no comment' interview.

Victim Impact Statement

18The complainant provided a moving and eloquent victim impact statement, in which she said you had gained her trust as a friend, aged only 14, and then exploited her trust. She was very traumatised by what you did, and by people knowing about it and pointing her out as the girl you raped. She said her whole family had been affected by it and their lives have been restricted. She has cut herself, and she has attempted suicide twice. She described how the violation of her body has made her feel unsafe and not in control of herself. She said you knew that she was gay, and you went ahead anyway.

19She wants you to know that you have not ruined her forever, and that she will recover, with the support of the many people who have helped her.

Gravity of the offending

20The gravity of this offending has been indicated by the legislature in the maximum penalty for the offence being 15 years' imprisonment. Sexual penetration of a child is particularly heinous in that children are regarded as needing to be protected because they are insufficiently mature to make proper judgments and decisions.

21You used alcohol to diminish the complainant's resistance to having sex with you. You used manipulative means to encourage her to come to your caravan that night, by claiming you would commit suicide if she did not come.

22These inducements raise the level of seriousness of your offending, as does the force you used to get her to comply. You instructed her not to move, and you turned her body yourself, against her wishes, in seeking gratification.

23The complainant's victim impact statement is a clear statement of the distress she felt at the time and later and continuing.

24Her father's victim impact statement describes the grief and anguish he felt when his daughter disclosed what you did to her, and also the guilt he feels at having failed to warn her of the evil that can come in the form of a predator such as yourself.

25Her father referred to the very extensive and intensive counselling she has had, which continues still, reporting that she has been diagnosed with complex Post Traumatic Stress Disorder. She does not leave the house alone, as she is scared of coming across you in the town, and her family even sees her onto the bus safely. The liberty of her siblings has also been curtailed through fear of harm by some unknown perpetrator.

Your background and personal circumstances

26You are a twenty year old man, living at home with your family and presently unemployed. You suffer from Autism Spectrum Disorder and severe ADHD[2], for which you have been treated during your childhood. You suffer from some other disorders and have experienced chronic suicidal ideation.

[2] Attention Deficit Hyperactivity Disorder

27Behaviour difficulties resulting from autism have been documented as having occurred at home and at school since your early primary school days, and you have been monitored ever since. It seems that medication was prescribed for you at the age of 11.

28You left school during Year 11 in 2021, as I said earlier, and worked in a fish and chip shop, which you enjoyed, but you left when your partner at the time had a fight with the owner.

29You have generally lived at home with your parents, and after your mother left the home, you remained with your father and brother, and you have a good relationship with your father. That seems to have been the situation at the end of 2021 and the beginning of 2022.

30On 10 February 2022, some 12 days after the offending, you were compulsorily taken to Casey Hospital, while in police custody, having expressed suicidal ideation at the police station. Notes made by the social worker, Nyasha Chidamahiya, who conducted a psychosocial assessment with you, include a history of having attended the Emergency Department at the hospital approximately 31 times in the previous 12 months, with a range of complaints. The worker noted a history of not engaging with services and arranged for follow-up by an agency called Casey Engage. You were discharged into the care of your parents at that time.

31The concern identified by the social worker at Casey Hospital was also expressed by a clinician at Monash Health on 3 March 2022, who assessed you following your referral there after multiple presentations to Frankston Emergency Department. The notes state that as a young teenager you had established a long history of disengaging with services, not seeing the value in psychological supports and unable to identify your treatment goals. The risk identified by the Monash Health clinician was chronic suicidal ideation and DSH (deliberate self-harm) for the past two years.

32This was stated to be in the context of untreated ADHD, Autism, Major Depressive Disorder (on the background of current psychosocial stressors), emotional dysregulation, chronic suicidal ideation and deliberate self-harm.

33You reported in March 2022 that you were binge drinking twice a week. You had just been prescribed medication by a psychiatrist but stated you had yet to notice any effect.

34These are the medical and social observations provided by professional people with whom you have had contact recently, which suggest the need for intense ongoing treatment and rehabilitative attention.

35In January 2024 you were assessed by psychologist Dr Felicity Allen, within the framework of your Autism condition. In her report she noted changes in your presentation since the time of the offending, including, for example, very much reduced alcohol intake and an apparent deterioration in your physical mobility owing to the back pain you experience.

36Dr Allen also identified through testing, extremely severe levels of depression, anxiety and stress, and high consistence of autism traits, indicating a need for individual counselling.

37You were also assessed at this time by psychologist Dr Aaron Cunningham, who had access to Dr Allen's report. The purpose of his assessment was to assess your risk to others, as an offender. You told Dr Cunningham that at the time of the offending you had been abusing alcohol and prescription medication, but that your alcohol abuse reduced about a year ago.

38After testing, Dr Cunningham concluded that you are at moderate risk of sexual re-offending. His useful summary of your presentation was, relevantly, that you have chronic impairments in communication, emotional regulation and adaptive behaviour, and you struggle to socialise and connect with others. This is hand in hand with psychological and emotional immaturity relative to your age peers.

39You told Dr Cunningham that you would not have acted as you did if you had been sober, and indeed he opined that your impairments were aggravated by alcohol at the time of the offending. Your reduced ability to empathise with others is consistent with your diagnosed autism, and no doubt also explains, at least in part, the absence of any remorse on your part.

40Dr Cunningham considered you would be vulnerable to abuse and manipulation from other prisoners if incarcerated, and that alternatively rehabilitative treatment would be available for you provided through NDIS, in the community.

41The principles in the case of Verdins are enlivened by the impairments from which you suffer, and accordingly your moral culpability is reduced, which must moderate your sentence to some extent.

Sentence

42Your counsel submitted on your behalf that an appropriate disposition would be a Community Correction Order with an intensive period including therapeutic conditions. The prosecution submission was for a term of imprisonment in combination with a community corrections order.

43I concluded that neither option was appropriate and instead, I arranged for you to be assessed as to your suitability for a Youth Justice Centre Order. That has been done and you are suitable.

44I order that you serve nine months detention in a Youth Justice Centre. This covers both the indictable charge of sexual penetration of a child, and the summary charge of supplying liquor to her.

45During the nine months you will be referred to take part in the Modular Adolescent Program for Positive Sexuality, or MAPPS, as it is known. There will likely also be treatment for alcohol and drug use as well. I am aware that both you and your father have expressed concerns to the officers who interviewed you as to your coping skills and physical safety while in detention, and that has been documented and will be taken into account.

46When you are released you will be on a form of parole, and you will continue to be supervised. Steps have already been taken to provide you with assistance to receive support for NDIS, both in detention and afterwards.

47In reaching this conclusion as to disposition, I have taken into account a number of mitigating factors, including the conditions from which you suffer and the impairments they cause. Additionally, you have pleaded guilty and that must be acknowledged as important, because it has spared witnesses from having to give evidence in a trial and has expedited the progress of the case through the criminal justice system. For these reasons you are entitled to a discount on your sentence.

48Other sentencing factors included the need for general deterrence and specific deterrence. People who might commit sexual offending need to be sent a message that to do so will result in severe punishment. You yourself must also be deterred from offending again. The order I am imposing is intended to address both those concerns. As a young person, your rehabilitation is very important, because you have your life ahead of you. Your successful rehabilitation will help protect the community, and will prevent you from offending again.

49

If you had pleaded not guilty to these charges, I would have sentenced you to

15 months Youth Justice Centre Order.

50It is mandatory that you be placed on the Sex Offender register for 15 years from the date of your release. It means that you must provide your details to the police every year for 15 years. You will be given a form to sign in that regard shortly.

51Mr Murphy, there may well be some custody management issues for me to note, perhaps I might suggest the following, if there is anything else please let me know.  It will be his first time in detention, he suffers from autism and the other disorders. There may be some medication that he is currently taking.  And I would propose that these sentencing remarks be made available to the officers at the Youth Justice Centre, I think that is usually done, but I will make sure of it. 

52Is there anything else you would like added?

53MR MURPHY:  No, thank you, Your Honour.  I think Your Honour has encapsulated it accurately.

54HER HONOUR:  All right, thank you, Mr Murphy.  Ms Piggott, is there anything else?

55MS PIGGOTT:  There was only a disposal order.

56HER HONOUR:  Is there, all right.

57MS PIGGOTT:  I think that was provided to Your Honour.

58HER HONOUR:  Yes, I will have a look at that and I will make that order. 

59Now the Sex Offender Register document is ready for signature.  Mr Murphy, do you want to approach the dock with my associate, in case there is something you would like to explain to Mr Howard.

60MR MURPHY:  Yes, Your Honour.

61HER HONOUR:  Thank you.

- - -