Director of Public Prosecutions v James
[2020] VCC 1478
•17 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No.CR-20-00529
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAY DYLAN JAMES |
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JUDGE: | WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 August 2020 | |
DATE OF SENTENCE: | 17 September 2020 | |
CASE MAY BE CITED AS: | DPP v James | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1478 | |
REASONS FOR SENTENCE
Pseudonyms used for witnesses to protect the identity of complainant
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Subject: Criminal law - sentence
Catchwords: pleaded guilty to 2 rolled up charges of sexual penetration under 16 – offender overnight visitor – complainant at friend’s house – offender met complainant on night of offence - complainant 14 years old – offender 26 years old – offender maintained activity instigated by complainant – police contacted next morning – offender unaware “whereabouts” for arrest activated – located 20 months after offence – pleaded guilty at committal mention – some remorse – emotionally deprived and violent childhood - homeless at time of offending – now in stable relationship – complainant particularly vulnerable – believed offence was her fault – post offence: bullied, panic attacks – requires
Cases Cited: Verdins v R [2007] VSCA 102; Brown v R [2010] VSCA 212; Bugmy v R (2013) 249 CLR 571; DPP v Massey [2019] VCC 389; DPP v Dole [2019] VCC 913; Jowett v R [2017] VSCA 358
Sentence: 12 months imprisonment each charge (concurrent) 2 year CCO with programs SORA 15 years. ---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Champion | OPP |
| For the Accused | Ms A. Beech | Pica Criminal Lawyers |
HER HONOUR:
1 Jay Dylan James, you have pleaded guilty to two charges of sexual penetration of a child under 16 years. Both charges deal with offending which occurred on the same night, within a few hours.
2 Charge 1 is a rolled-up charge of sexual penetration of a child under 16, involving penetration of the complainant’s vagina with your finger on three occasions on the night in question. Charge 2 is a further rolled up charge in the same terms but involving three occasions that night when you penetrated her vagina with your penis.
3 The complainant at the time was aged 14. You were 26. The offending took place at a house where you were staying as a guest of the owner, Leanne Jacobs[1], whose daughter Belinda[2] was a school friend of the complainant’s. You met her on 17 February 2017 at a local shopping centre where she and Belinda were going to a Blue Light Disco.
[1] pseudonym
[2] pseudonym
4 It was arranged between the girls’ mothers that the complainant stay the night with Belinda. You were at the house, watching television in your bedroom, which Belinda had vacated for you, for the duration of your stay in the house.
5 The complainant and Belinda spent time in the bedroom watching TV with you, and at one stage you gave the complainant some marijuana to smoke. Belinda’s mother repeatedly told the girls to leave your bedroom and told you it was not appropriate for them to be there.
6 At about 3 o’clock in the morning on the 18th February, while seated next to the complainant you put your arm around her, rubbed her stomach and then placed your hand down her pants and inserted a finger into her vagina. Belinda was in the room, and nothing was said to her by either you or the complainant. This is the first part of Charge 1, the rolled up charge of sexual penetration of a child under 16.
7 Soon afterwards, with Belinda having left the room, you again hugged the complainant and put a finger into her vagina. That is the second part of Charge 1.
8 You then pulled down the complainant’s pants and had penile vaginal sex with her. She did not know if you used a condom. This is the first part of Charge 2, sexual penetration of a child under 16.
9 Sometime after 7 am that morning the complainant awoke from sleeping in the same bedroom to find your arm around her. She left the room to find Belinda but you told her Belinda was in her mother’s room. The complainant returned to Belinda’s bedroom to go back to sleep and you followed her, and started hugging her again. You then inserted your finger into her vagina. This is the third part of Charge 1.
10 You then inserted your penis into her vagina without a condom. You withdrew your penis and took a condom from your bag and placed it on your penis, before inserting it again into the complainant’s vagina. These instances form the second and third parts of Charge 2.[3]
[3](See para 16 and 36 of Pros Opening).
11 Later that morning, while walking with the complainant and Belinda you told her you were sorry about what happened, that no-one should know and that she shouldn’t tell anyone.
12 Belinda told her mother that morning that she had heard moaning noises during the night coming from her bedroom. Ms Jacobs went to Belinda’s bedroom and saw you sitting on the bed with the complainant next to you, kissing your neck.
13 Ms Jacobs then spoke to the complainant, who told her you had had sex with her twice during the early hours of the morning. She confronted you with that allegation, and you agreed it was true. Ms Jacobs said the police were being called and you left the house immediately, taking only your mobile phone.
14 Police attended and took items from the bedroom. Later that evening Ms Jacobs found a bag containing your clothes and a used condom. Police attended again and collected them.
15 Over the next few days you sent messages to the complainant saying sorry, and asked her to convince her mother that you had not forced or convinced her to have sex. You asked the complainant to try to avoid having the matter go to court.
16 On 25 July 2017 police submitted a “whereabouts” for your arrest, but were unable to locate you until 29 March 2019, when you were interviewed. You said you knew how old the complainant was, and that she initiated the sexual touching and penetration, which you allowed to continue and eventually you could not resist. While you made full admissions you claimed that the complainant had initiated all the sexual activity, and even though you knew her age, and had only just met her, you characterised what took place as being almost like any relationship. What you told police about that night with the complainant revealed that you appeared to have been flattered by her attentions. You minimised your own responsibility and attributed blame to the complainant. However, you said you had screwed up, and it was understandable that the complainant’s mother was in a fit of rage about it.
17 You were charged on 11 December 2019 and by 3 April 2020 the matter was resolved, with your pleas of guilty entered at a committal mention.
18 The complainant provided a victim impact statement, in which she explained the effects upon her of your actions. The prosecution opening contained the information that as a young child she had been diagnosed with sensorineural deafness and ADHD, as well as Autism Spectrum Disorder Level 1, also known as Asperger’s Syndrome. She made no reference to these conditions in her statement, but explains that she has trouble socialising with people her own age, that she lost friends over the incident with you, and has been bullied at school. She spent long periods away from school, owing to anxiety or panic attacks, and she believed what happened was her fault. She felt bad that her mother and siblings witnessed her distress, including seeing cuts on her arms, and seeing her mother having to hide knives and drugs that she, the complainant, had brought into the house.
19 She requires extensive support and has resented having to tell her story again to many different people.
Gravity of the offending
20 Sexual offences against children are very serious offences, in this case attracting a penalty of 10 years’ imprisonment. There is a presumption of harm in such cases, which is indeed well established in this case. You were a guest in the house where the crimes occurred, and you breached the trust of Ms Jacobs and also of the complainant herself. Although she had only just met you, she knew you were a friend of Ms Jacobs, who trusted you with her own daughter. That would have been obvious to the complainant and to you.
21 You also knew that the complainant was 14, as you knew how old Belinda was, and you knew they went to school together, and were going to the Blue Light disco together. Therefore you knew there was a significant age gap between her and yourself, then aged 26, and that it followed that you abused the power you had as an older person.
22 It was in that context that you gave her cannabis to smoke, which she did and that is an aggravating factor.
23 However, you did not know, apart from her age, any particulars of the complainant’s vulnerability, as there were no manifestations of this in the context of your meeting with her. You took advantage of an opportunity to have sex with her, and you did so spontaneously, with no planning and no grooming. In her VARE the complainant said she had felt awkward and she didn’t like it when you penetrated her but she didn’t say anything as she didn’t want anyone to get into trouble.
24 The fact that the offending occurred over a short period of a few hours, on one occasion, reduces somewhat the gravity of the offending, although the perpetration of six instances of sexual penetration during that time, resulting in two rolled-up charges, is serious in itself. In addition, for a brief time, you did not use a condom.
25 Having taken all these matters into account I conclude that the offending is in the mid-range of seriousness, as submitted by the prosecution and agreed by the defence.
Background and circumstances of the offender
26 I now turn to your background and personal circumstances.
27 You are now 29 years old, and, as I said, you were 26 years old at the time. You were one of two children of your parents, and later there were two half siblings. Your mother was a heroin addict who slept a lot during the day and invited drug users into the house frequently. Your father was also a drug user and was very violent towards your mother and the children as well. He was often in prison and you had very little relationship with him.
28 You recall seeing your mother so injured by your father that she required 30 stitches. You recall being woken by your father and threatened with the breaking of your fingers by the use of pliers. You remember other forms of violence against you.
29 At the age of 11 you and your sister were removed from home by Department of Health and Human Services and you then lived with your maternal grandparents. However, you suffered emotional abuse at their hands, including being told you were worthless like your father. For a short time you returned to live with your mother but soon returned to your grandparents.
30 At school you managed quite well, assisted by an aide, and your functional literacy is evident from the letter you wrote to the court, and even in your record of interview. At school you completed VCAL, a vocational equivalent to VCE.
31 You were consistently employed after leaving school, mostly as a labourer, and you were employed at the time of the offending. This is despite the total absence of any adult in your family working and demonstrating that model to you. You lost your job when the pandemic crisis set in.
32 You began smoking cannabis at age 17 and this has been a continuing daily habit for many years. However, you have not resorted to the use of any other drugs because of what you observed in your family.
33 At the time of the offending you were homeless, sleeping on people’s couches, as you had had to leave your share house following an altercation with another resident. That resulted in the police attending, and you were charged with assault and using cannabis. This was dealt with in the Magistrates’ Court on 6 May 2017 when you were convicted and fined.
34 For the past nine months you have been - that should be a little bit longer than that I think now - in a relationship with Ms Melanie White, who is a hairdresser normally employed full-time, and you live with her and her family. Ms White wrote a reference describing your frankness with her about these charges, and your efforts to seek treatment through your general practitioner. Her father also wrote stating that you are deeply ashamed and contrite, that you have integrated into his family and behaved admirably.
35 You have also written a letter to the court setting out details of the deprivation you experienced as a child, and of the dysfunctional nature of your childhood. After leaving school and moving from job to job you developed some insight into the benefits of working and became more confident. You said the White family have come to accept you, and for the first time in your life you feel part of a family that supports you. It seems you have matured and become more responsible, and regard your punishment as a way to better yourself. You apologise for what you did, and state that you have enormous regret, understanding that the event will probably be affecting the complainant’s daily life.
36 The clinical and forensic psychologist Mr Patrick Newton assessed you recently and diagnosed an adjustment disorder with depressed mood. He said your symptoms combine both reactive and longstanding causes, with your depression having its origin in the “chaotic neglect and abuse” of your early years. He noted that you are taking an effective anti-depressant medication, likely to be providing at least some containment of the depression and preventing the development of more severe symptoms. I shall return to that diagnosis later in these remarks.
Mitigating factors
(1) Plea of guilty and remorse
37 The expression of remorse that I have referred to is an important aspect for consideration in my sentencing task. Beginning with your plea of guilty, it means you are entitled to a discount on your sentence, for avoiding a trial, and saving the complainant, in particular, and other witnesses close to her from having to give evidence and be cross-examined. It has expedited the finalisation of the matter relatively quickly since you were charged, even though there has been a considerable delay overall, and in that way it has been of assistance to the criminal justice system.
38 A plea of guilty can be taken to indicate remorse to some extent, but in your case there are other indications of it. Ms Champion, for the prosecution, submitted you have showed little remorse, because you told the complainant not to tell anyone, you left the house quickly on being told the police had been called, you messaged the complainant attempting to pressure her not to proceed with a complaint, and even after two years you still apportioned blame to the victim. Ms Champion said that even when expressing some remorse to Mr Newton, you still said the complainant was the instigator and you lacked insight into your offending.
39 Ms Beech, who appeared on your behalf, referred to your expression of remorse to Mr Newton also, and the references to it in the letters from the Whites and your friend, Mr Cairns. Mr Cairns said he saw you the day after the event, and said you regretted what happened and you were sorry. In her VARE the complainant said you told her you were sorry, even though she also said that later she did not believe this.
40 Certainly there are indications of genuine remorse, and although it may be tempered by your lack of insight, which is perhaps only slowly developing, I accept you do regret what you did.
(2) Prospects for rehabilitation
41 Despite your difficult and indeed tragic upbringing you have no criminal history and have remained a person of good character until you committed these offences. The subsequent conviction is for an unrelated matter and indicates a problem with anger which needs to be addressed, along with other issues, including drug abuse.
42 Good prospects for rehabilitation are often indicated by an offender’s remorse. So I am back to that issue again. The remorse you have expressed appears to be bound up with a low level of insight which might be now changing, as I have previously mentioned. On that basis your prospects for rehabilitation would be described as no better than guarded. However, your new circumstances of a stable life with your partner, living with her family who accept you, and your efforts under the difficulties of the COVID restrictions to engage in treatment, suggest better than guarded prospects.
43 Additionally, and importantly, you have a good work record and will hopefully be able to obtain work when jobs become available in a recovering economy. Overall, therefore, your rehabilitation chances are probably good, and will be enhanced by treatment.
(3) Delay
44 It is now 3 years since you were charged with these offences, which represents a considerable delay. You could not be found for about 2 years, but it was submitted that there is nothing to suggest you knew of a “whereabouts” having been issued by the police. Contrary to this is the prosecution submission that you immediately left the house when you were told that the police were being called, thus contributing to the delay. However, it took 9 months from the date of your arrest until you were charged, which is a considerable delay. Thereafter it appears that the process moved quickly once you were represented and you pleaded guilty on 3 April this year. Regardless of fault, you are entitled to have this overall delay taken into account in sentencing.
Sentencing discussion
45 Ms Beech relied not upon your diagnosed adjustment disorder, but upon your condition of depression as enlivening limbs 4, 5 and 6 of the decision in Verdins[4]. While this diagnosis fits the definition of a mental impairment, the question is whether it has some ‘realistic connection’ with the offending. Your lack of insight into the offending appears to have been brought about by what Mr Newton described as “deep-seated problems in his self-esteem and the sense of personal inadequacy that has resulted”. This in turn is a legacy of the childhood abuse you suffered. In this context Mr Newton referred to your maladaptive personality traits, which he said are not sufficiently intense as to warrant the diagnosis of a fully-fledged personality disorder. Ms Beech emphasised that she relied only on the diagnosis of depression rather than the adjustment disorder, and certainly not on personality disorder.
[4] [2007] VSCA 102
46 After the plea hearing the decision in the case of Brown v R[5] was handed down, and I received a further submission on sentence from the prosecutor, Ms Champion, prepared by her following discussion with Ms Beech. Ms Champion withdrew the prosecution submission that the Verdins principles are not enlivened by an adjustment disorder with depressed mood, but added that Ms Beech had informed the prosecution that despite the decision in Brown it is not contended on your behalf that the adjustment disorder enlivens the Verdins principles.
[5]Brown v R [2010] VSCA 212
47 Ms Beech referred to the decision in the case of Bugmy[6] as applying in your case, given Mr Newton’s opinion that your pre-existing depression had its origin in your childhood neglect and abuse. The acknowledgment in the case of Bugmy that the effects of social disadvantage do not diminish with time should be read together with the mild depression stemming from those very conditions, as being the nexus between your impaired mental health and sexual offending against a young person. Mr Newton said in his report that your fear of exploitation, rejection and abandonment caused by your childhood abuse meant your anxiety made it difficult for you to establish intimacy with an adult, and your choice of an underage partner can be explained in that way.
[6]Bugmy v R (2013) 249 CLR 571
48 My conclusion is that the Verdins principles are enlivened in this way, and apply to a depressive condition born out of your early developmental history, so it follows that the need for general deterrence is somewhat modified.
49 Mr Newton considered your mild depression is likely to cause you to internalise the punitive aspects of sentencing if incarcerated, producing a moderate deterioration in mood after sentencing, thus reducing the need for specific deterrence. There is no doubt as to the need for specific deterrence in this case, but the pressing need for treatment and the likely benefits it would bring you, mean that some modification is called for.
50 As to your risk of reoffending, Mr Newton conducted an assessment of this risk and concluded that your risk is at the low-moderate level. I note that the Corrections officer who assessed you considered your risk of general offending was high, but I place more weight on Mr Newton’s opinion given his expertise. In reaching that conclusion he took into account the changing and stable risk factors in your circumstances, as well as protective factors which modify the risk.
51 However, Ms Champion submitted that Mr Newton had not taken account of your subsequent offending or the text messages you sent to the complainant, and that he did not engage with the issues in the record of interview. She submitted that the risk may have been assessed at a higher level if these matters were taken into account.
52 Mr Newton's report is dated 28 July 2020 and so it would have been available only days before the plea hearing. Nonetheless there was no indication by the prosecution of a need to require Mr Newton’s attendance at the hearing for cross-examination about these issues, a course which could have been taken.
53 Although I can find no indication it his report that Mr Newton had read the record of interview, he is an experienced forensic psychologist well qualified to have taken into account the issues which emerged in the interview, which also presented themselves during aspects of his assessment of you.
54 As to your subsequent conviction, although the violent behaviour is concerning, it is completely unrelated to the sexual offending. Accordingly, I do not take the view that your recidivism risk would have been assessed at a higher level had these matters been explicitly dealt with by Mr Newton.
55 Both general and specific deterrence are therefore best served by the imposition of a term of imprisonment and a correction order. This disposition would be the most likely means of protecting the community from risk, which is an important goal of sentencing, not least in cases of child sexual abuse, which justifiably are regarded by society as particularly heinous. It is of course, very serious offending and each charge attracts a possible 10 year maximum sentence.
56 I was referred by Ms Beech to several cases with degrees of similarity. Massey[7] and Dole[8] are both sentences imposed by judges of this court; the third, Jowett[9], is a decision of the Court of Appeal. All involve instances of offending on a single occasion. The sentence in each case involved a Community Correction Order with or without imprisonment.
[7]DPP v Massey [2019] VCC 389 The circumstances in Massey are the most similar, involving sexual offending by a 20 year old man against two 13 year old girls. The offender had an impoverished background with a history of child abuse, self-harm and suicide attempts. There were aggravating factors such as a considerable age difference, the offender’s persistence despite their age, and the absence of a condom. The active involvement of the two girls was described by the sentencing judge as an aggravating factor, as opposed to the mitigating factor the offender asserted it to be.
It was described as opportunistic rather than predatory behaviour, and the judge considered it to be at neither the lower nor the upper end of the range of seriousness. The offender was sentenced to 3 months imprisonment with a 2 year CCO.
[8]DPP v Dole [2019] VCC 913 In Dole, the offender aged 19 sexually penetrated a 12 year old girl. He was of low intelligence and was psychologically immature, perhaps no more mature than his victim. He was placed on a 3 year CCO.
[9]Jowett v R [2017] VSCA 358 In Jowett the offending was more serious, the offender being aged 33 and the victim aged 15. The offender was her step-father, and was charged with two charges of sexual penetration of a child under 16, under care, supervision or authority. He was sentenced to 9 months’ imprisonment with a 2 year CCO, which was upheld by the Court of Appeal.
57 In considering the circumstances and the resulting sentences in those cases, I am of course constrained by the need to consider your case in the particular circumstances that apply.
58 At present the restrictions which apply because of the COVID-19 pandemic require offenders entering the prison system to be in quarantine for 14 days before joining the prison population. While there are currently no cases of infection amongst the prison population, other than in quarantine, there exists a level of anxiety about the possible transmission should any cases of infection occur. In addition, prisoners are greatly restricted in having time out of their cells, and all educational and vocational courses are cancelled at the moment I believe. Those matters add to the oppressive nature of incarceration at this time.
59 Taking into account all matters the appropriate sentence is as follows - and I will ask you to stand up please, Mr James.
60 For each charge, 12 months’ imprisonment, to be served concurrently.
You have been assessed as suitable for a Community Correction Order, and after serving your sentence, you will commence a twoyear Community Correction Order, which will apply to both charges.
Within two working days of your release you must contact the Corrections office at Frankston. You will be under the supervision of that office.
You must have treatment for drug abuse, and for your mental health.
You must take part in programs to reduce offending, including a Sex Offender program.
I had considered requiring you to complete some unpaid community work, but that is difficult at the moment because of the pandemic. However, I order that you do complete 20 hours of work, and that any time you spend in treatment or attending programs is to be credited against those work hours.
61 Do you agree to these conditions, Mr James?
62 OFFENDER: Yes, Your Honour.
63
HER HONOUR: If you breach the conditions or re-offend in any way you may be charged with the offence of breaching the order, and then may be
re-sentenced.
64 In determining this sentence with regard to concurrency I have taken into account the principle of totality.
65 Pursuant to s.6AAA, if you had pleaded not guilty I would have sentenced you to two years and six months’ imprisonment, with a non-parole period of 18 months.
66 The Sex Offender Registration Act requires that after your release you report your details to the police every year for 15 years. I make that order. That will be ready for you to sign in a moment and perhaps, Ms Beech, you would like to accompany my associate to the dock for that to be done.
67 MS BEECH: Yes, Your Honour.
68 HER HONOUR: Is there anything further, Ms Champion?
69 MS CHAMPION: No, Your Honour. That is everything.
70 HER HONOUR: Thank you. Anything further, Ms Beech, from you? No.
71 MS BEECH: No. Thank you, Your Honour.
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