Director of Public Prosecutions v Jefferson (a pseudonym)
[2025] VCC 198
•27 February 2025
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DEREK JEFFERSON (A PSEUDONYM) |
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JUDGE: | Karapanagiotidis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 February 2025 | |
DATE OF SENTENCE: | 27 February 2025 | |
CASE MAY BE CITED AS: | DPP v Jefferson (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 198 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentencing
Catchwords: indecent act with a child under the age of 16 – delay – prospects of rehabilitation
Legislation Cited: ss 5(1), 6AAA Sentencing Act 1991 (Vic).
Cases Cited:Bugmy v The Queen [2013] HCA 37; Sherrit v The Queen [2015] VSCA 1; Stalio v The Queen [2012] VSCA 120; Rootsey v The Queen [2018] VSCA 108.
Sentence: With conviction, adjourned undertaking for 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Makary | Office of Public Prosecutions |
| For the Accused | Mr J. Connolly | Sarah Pratt & Associates |
HER HONOUR:
1Derek Jefferson[1], you have pleaded guilty to five charges of indecent act with a child under 16.
[1] A pseudonym.
2The full circumstances of your offending are outlined in the prosecution opening, marked as Exhibit A. This constitutes the factual basis upon which I sentence you.
Circumstances of the offending
Introduction
3At the time of the offences, you were the foster uncle of Kelsey Lynn[2] and Everette Buckley[3] and the foster brother of Jarret Rogers[4].
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
4The offending against Kelsey Lynn occurred when Kelsey was aged between eight and nine years of age and you were aged between 15 and 17 years of age.
5The offending against Jarret Rogers occurred when Jarret was six years old and you were either 16 or 17 years old.
6The offending against Everette Buckley occurred when Everette was six years old and you were 17 years old.
7In 2004, when you were aged eight to nine years old, you became the foster child of Rolland Cameron[5] and Edwina Swanson[6], who are the grandparents of Kelsey and Everette. They would visit their grandparents frequently. Jarret was another one of their foster children and shared a bedroom with you. All of the offending occurred at your home address in Mooroolbark.
The offending - Kelsey Lynn
[5] A pseudonym.
[6] A pseudonym.
8Turning to your offending against Kelsey, earlier when your foster family were living at an address in Croydon, you engaged her in several conversations about body parts and kissed her. This is an uncharged act, relevant to context.
9Charge 1 is comprised of offending against Kelsey that occurred between 7 December 2011 and 6 December 2012 on three separate occasions. On each occasion, Kelsey was visiting at her grandparents home and you asked if she would like to help you and Irwin[7] to take the rubbish to the outside bin –
(a) First occasion: When Kelsey was near the clothesline, you removed your penis from your clothing and showed it to Kelsey. While Kelsey and Irwin were watching, you masturbated and ejaculated into a towel.
(b) After you had ejaculated, you instructed Kelsey to touch some of your ejaculate which was on your penis. Irwin also encouraged her to touch it. Kelsey then complied and used one finger to touch the head of your penis and ‘swipe’ it (Charge 1 – Indecent act with a child under 16 – Occasion 1).
(c) Irwin then encouraged her to touch the ejaculate, which was on the towel, saying “Just touch it”. Kelsey complied and placed one finger into the ejaculate on the towel. She then wiped her finger on a clean part of the towel. Kelsey and Irwin went inside while you remained outside.
(d) Second occasion: Again outside the bin area, you removed your penis from your clothing and held it in your hand. You asked Kelsey to come closer to you, and said, “Go on touch it”. Kelsey complied and used one or two fingers to stroke the top and the sides of your penis. You then told her to go inside the house. Kelsey complied and went inside. You and Irwin remained outside for a short period of time before you both also came into the house (Charge 1 – Indecent act with a child under 16 – Occasion 2).
(e) Third occasion: In the same circumstances, you again removed your penis from your clothing, and showed it to Kelsey while Irwin was watching nearby. You then grabbed her hand and wrapped her fingers around your erect penis. You held her hand on your penis, and moved it, showing her how to masturbate you. After a period of time, you let go of Kelsey’s hand and she continued to move her hand on your penis and masturbated you (Charge 1 – Indecent act with a child under 16 – Occasion 3).
[7] A pseudonym.
10Turning to charge 2, on another occasion between the same period of time, and again in circumstances where Kelsey was visiting her grandparents and went to the outside bin area with you and Irwin, you removed your penis from your clothing and showed it to her while Irwin was nearby. You then said, “Here’s another way”, “You can lick it”. Kelsey asked you what you meant, and you responded, “Just lick it like a lollipop. It’s easy”.
11Kelsey complied and used her tongue to lick along your erect penis. After she did this, Irwin instructed Kelsey to return inside, and she complied (Charge 2 – Indecent act with a child under 16 – Occasion 1).
12On another occasion between 7 December 2012 and 24 October 2013, when Kelsey was visiting her grandparents, she again went to the outside bin area with you and Irwin.
13You exposed your penis and asked Kelsey to lick it. Kelsey complied and used her tongue to lick your penis. (Charge 2 – Indecent act with a child under 16 – Occasion 2)
The offending – Jarret Rogers
14Turning to Jarret, on an occasion between 2 February 2012 and 1 February 2013, Jarret was in bed, in the bedroom he shared with you. You were in your own bed. At that time you were 16 years of age and Jarret was six years of age.
15You called Jarret over to his bed and directed him to get into bed with you. Jarret complied and got into your bed.
16You pulled down his pyjama pants and took hold of Jarret’s wrist. You placed Jarret’s hand onto your erect penis and moved his hand up and down (Charge 3 – Indecent act with a child under 16 – Occasion 1).
17You then pulled down Jarret’s pyjama pants and placed your hand onto Jarret’s penis. You rubbed and squeezed Jarret’s penis and testicles.
18After engaging in that activity for a period of time, you told Jarret to go back to his bed. Jarret complied, got into his bed and went to sleep. (Charge 4 – Indecent act with a child under 16 – Occasion 1).
19On another occasion between 2 February 2012 and 1 February 2013, Jarret was lying on his bed in the bedroom that he shared with you, when you asked him if he wanted to sleep in your bed.
20Jarret got into your bed, and you rubbed his penis and testicles with your fingers (Charge 4 – Indecent act with a child under 16 – Occasion 2).
21You then asked Jarret if he wanted to ‘copy’ what you were doing. You then placed Jarret’s hand onto your penis and touched it. After touching your penis for a period of time, Jarret fell asleep and slept in your bed (Charge 3 – Indecent act with a child under 16 – Occasion 2).
The offending – Everette Buckley
22On an occasion between 9 March 2013 and 24 October 2013, Everette Buckley visited his grandparents’ home to have a sleepover. Arrangements had been made for you and Everette to share your bed. At that time Everette was six years of age, and you were 17 years of age.
23On the first night that Everette was staying while you were both in bed together, you asked him if he wanted to play a game. You then told Everette that he had to ‘play’ with your penis. Everette asked, ‘Why?”, and you said, “Just do it.” Everette complied and placed his hand into your shorts, and placed it onto your penis. Everette moved his hand on your penis for a period of time, masturbating you. He then stopped and fell asleep and slept in your bed for the night (Charge 5 – Indecent act with a child under 16 – Occasion 1).
24On the second night that Everette was staying with his grandparents in Mooroolbark, he again slept in the same bed as you. While you were in bed together, you again asked Everette if he wanted to play the game.
25Everette complied and placed his hand onto your penis and moved his hand on your penis (Charge 5 – Indecent act with a child under 16 – Occasion 2).
26While Everette was masturbating you, Everette said to you, “Now it’s your turn”. You initially declined. Everette responded, “That’s not fair” and added “Otherwise I won’t do it”.
27You then placed your hand onto Everette’s penis and rubbed it. Everette responded by continuing to masturbate your penis for a period of time, before he told you that he was tired. You asked him to continue, but Everette refused and stopped masturbating you. He then went to sleep in your bed (uncharged act).
28Between 19 October 2014 and 25 December 2014, you moved out of Rolland Cameron and Edwina Swanson’s home in Mooroolbark. You were 19 years of age at that time. You did not return to live with them after you left.
Disclosure
29In 2018 when Kelsey was in Year 9, at a school excursion she disclosed to a friend that when she was younger her uncle had touched her. In September/October 2018 Everette told Jarret that he was feeling sick about you as you made him do ‘bad stuff.’ He told Jarret that you made him touch your ‘dick’ and Jarret told Everette that you also made him do that.
30On 16 December 2018 Jarret disclosed the offending to Rolland and Edwina Swanson who in turn contacted Lisa Mora,[8] their daughter, and the mother of Kelsey and Everette. This prompted her to make some inquiries of her children, as outlined in the prosecution opening. Following what she was told, she made arrangements to attend at the Knox SOCIT the next day. All three children participated in video recorded interviews on 17 December 2018.
[8] A pseudonym.
31On 25 July 2019, when you were aged 23, you attended the Werribee Police Station and were interviewed in respect of the offending. A summary of your answers is outlined in the prosecution opening from paragraphs [53] to [54]. In brief, you admitted to touching Jarret’s penis (e.g [118]) in the context of being ‘curious about what the body was doing’ (eg [74]) but denied any sexual offending and/or contact with Everette and Kelsey (see eg [224], [250]).
Victim impact
32Kelsey Lynn has provided a statement outlining the impact of your offending. Its impact has been profound and pervasive. It has impacted both her physical and mental health, relationships and experiences. Further, she states, ‘this crime also made me feel like I would never be good enough to love and would never be worthy of love and affection. I believe this crime will never stop affecting me and will be a constant burden weighing on me.’ She suffers recurring panic attacks, has had difficulties maintaining employment, struggles around others and in public and has put a great strain on her friendships. Consequently, she has missed out on ‘many events and opportunities’. Everette Buckley also articulates the impact of your offending on him, describing its impact as ‘relentless’. Your offending undermined his sense of safety and wellbeing. He has suffered anxiety and depression which has impeded his school, work and social life. He further describes the stress and triggers in everyday activities and how, he states, ‘I couldn’t explain to the people who protected me that I no longer knew how to feel safe’.
33I take into account the impact of your offending on your victims.
Gravity of offending
34Your offending is inherently serious as indicated by the maximum penalties that apply. You offended against three young children, Kelsey was eight and nine and Jarret and Everette were both only aged six at the time.
35Children are entitled to safety, and to live lives free of sexual harm or exploitation. All sexual offending against children is serious and abhorrent to our community. The courts have highlighted the importance of denouncing such conduct. As submitted by the prosecution, and as demonstrated in this case, it is well-established that the harm caused by sexual abuse of children and young people is severe and long lasting.
36Each charge you have pleaded guilty to is a rolled-up charge and I therefore must take into account the full circumstances of the offending. Your offending was not isolated and overall spanned an approximate two year period. It also took place in a familial environment or home where the children were entitled to feel safe. While I accept that there may have been a degree of sexual exploration involved, as you explain in your record of interview, as accepted by your Counsel there were more gratuitous aspects of your offending against Jarret. I do note that there is an absence of aggravating features, such as overt threats or coercion associated with the offending.
37As for your culpability, I have considered your relationship with the children and also the significant age disparity. Also, as accepted by the prosecution, I have taken into account, as an important factor, that you were a child yourself at the time of the offending which I consider substantially reduces your moral culpability.
Chronology
38A useful chronology is outlined in the prosecution opening.
39In summary, October 2013 marks the end of the offending period, with you moving out of the family home in 2014. On 16 December 2018 complaints were made to the police. On 25 July 2019 you were arrested and interviewed. In May 2022 you were formally charged. On 20 May 2022 there was a filing hearing. On 2 September 2022 a committal mention which proceeded by straight hand up brief and you entered pleas of not guilty. On 12 April 2023 there was a Ground Rules hearing in this court, followed by other procedural dates. On 14 August 2023 the trial was originally listed but vacated as it could not be reached. On 22 August 2023 pre-trial argument occurred and the ruling, which resulted in the trial being severed into two, was delivered on 17 November 2023. The case was then further delayed awaiting the High Court ruling in the matter of Smith, relevant to this case. On 15 July 2024 the matter was mentioned and then fixed for trial on 28 January 2025. On this date the trial proceeded and the jury were discharged on 3 February 2025 in the context of disclosure issues arising. On 5 February 2025 both trials resolved and proceeded as an arraignment, followed by a plea hearing on 13 February 2025.
Plea of guilty
40It is clear from this chronology that your plea is not an early one. Also, both Jarret and Everette gave evidence at a special hearing and Kelsey attended Court several times in expectation of giving evidence. In all the circumstances however I do accept your Counsel’s submission that your plea is still an important one. It has spared Kelsey the ordeal of giving evidence before a jury. It has also avoided the need to adjudicate further likely pre-trial issues arising from the recent disclosure. I accept your plea still carries important utilitarian value and indicates your willingness to facilitate the course of justice. I also take into account that you did make some admissions in your interview in respect of the conduct relating to Jarret.
Personal circumstances
41Your personal circumstances were outlined by your Counsel.
42You are now 29 years of age, turning 30 in October of this year.
43You were born in Croydon and grew up with your biological parents for the first three years of your life. You were then removed from them and placed in foster care due to the abuse and neglect you experienced. Anglicare took over your care in August 1998 and a formal interim protection order was made on October of that year. By December 1998 any contact you had with your parents ceased after your biological father allegedly physically and verbally assaulted a child protection worker. On 15 February 1999 formal custody to the secretary orders were made and you were placed into the care of Thelma[9] and Francis Holmes[10].
[9] A pseudonym.
[10] A pseudonym.
44During this period you presented with multiple challenges, attracting a provisional diagnosis of autism and ADHD. In more recent times you have reconnected again with Thelma Holmes and she has provided a letter in support of you which offers some insights from this period. As a very young child, first placed into their care, you did not appear to be able to speak or hear, exhibited self-mutilating behaviours and ‘displayed behaviours such as eating from a bowl in a manner similar to a pet.’ Her daughter, Hilary,[11] also describes you as a very anxious child, ‘who stuttered and would pick at his skin.’ These behaviours prompted the Holmes’s to seek further professional assistance.
[11] A pseudonym.
45Contemporaneous records from Eastern Health include a psychiatric assessment report, undated, but authored when you were still living with the Holmes’s at eight years of age. It refers to some of your past history of eating harmful objects and hurting yourself, some disruptive behaviours and your treatment with Ritalin. The report notes, ‘the foster parents’ main concern seemed to be that Derek had suffered trauma in his early life and they wondered about the effect of that on his ongoing development.’ The psychiatrist considers that disruption in early childhood relationships and attachment either to parents or carers was a stressful experience for most children and likely to have impacted your development. She diagnosed you with Reactive Attachment Disorder of childhood, posttraumatic stress disorder, ADHD and autism spectrum disorder.
46While it is clear from the letter of Ms Holmes that you did thrive within their family and they did try and have you appropriately supported, the challenges did persist. On the advice of your psychologist at the time, Anglicare sought an alternative placement. In particular, as the Holmes’s also had your brother in their care, who suffered severe cognitive impairments, it was considered best that you transition into the care of another foster family and that is when you were placed with Rolland Cameron and Edwina Swanson. This move also involved some disruption to your schooling.
47The years you spent at Rolland Cameron and Edwina Swanson’s and how you managed are not entirely clear. You attended Croydon Secondary school from 2009 to 2012. At the time you received a certificate 2 in automotive studies in lieu of completing your year 12 but you did return to complete year 12 in 2013/2014. Your Counsel submits that during this period you stopped presenting with acute behavioural problems. You started playing sports which helped and you developed a good group of friends and managed your behaviours yourself without any formal supports. It may very well be that at school you managed to engage and apply yourself. I note that the psychiatrist that saw you when you were eight years old spoke to your teachers and within the school environment it was considered that your learning was on track and that your behaviour was ‘normal’ and you had ‘good peer relations.’ While on some level it appears that you therefore did manage at the time, it also seems that later in life you have reflected on your past and have tried to unpack the impact of your experiences of family trauma, detachment and instability.
48In 2014 you developed a relationship with your partner Ms Leila Cruz.[12] She is now 28 years of age and has known you since she was around 16. It is also in 2014 that your relationship with Rolland Cameron and Edwina Swanson deteriorated and you left the house.
[12] A pseudonym.
49Your partners mother, Ms Teri Richard[13] (who I note has attended now at Court in support of you on several occasions) refers generally to this period of time and to taking you in after you left the Rolland Cameron and Edwina Swanson’s home. You quickly became a ‘big part’ of their family. She taught you how to drive and you enrolled in a course which led to you getting your licence. She also refers to you learning to express your feelings in a healthy way. She states, ‘Derek’s opinion of himself suffered terribly whilst with his foster carers and if people raised their voices or got angry whilst living with us, he would withdraw into himself, which taught us all that there needed to be a better way.’
[13] A pseudonym.
50In 2014 you started working at a fish and chip shop, though you suffered a knee injury playing cricket which caused you some difficulties. In 2015 until 2017 you worked for a pizza venue and in 2017 you started working at metro drains, commencing your current trade as a drainer. You have now worked in that industry for some eight years. In 2016 until 2018 you attended Melbourne polytechnic and achieved your certificate 2 in drainage, along with obtaining your excavation licence. You have since been in consistent employment, working for several drainage companies over the years and you are currently employed on a full-time basis.
51Over the years, as already noted, you have wondered about your childhood and, with the help of Ms Cruz, applied to obtain the department file. Ms Cruz states, ‘what we were hoping would answer Dereks questions opened many more as Derek made the discovery of how abusive and dangerous his biological parents were…Derek is still in the process of gaining further information of what was a fractured and heartbreaking childhood’.
52On a personal level it seems that you have struggled. In 2014 you started seeing a counsellor at Headspace and continued to see the counsellor either fortnightly or monthly for several years, up until 2019, when you were charged with these offences. In this context, your counsellor told you that what you said could be disclosable and this scared you. You resumed counselling again last year. The letter from Ruth Gold, psychologist, confirms that she has been seeing you from 23 July 2024 in the context of you presenting with ‘heightened levels of anxiety, stress and poor sleep.’
53In 2022 you were charged in respect of this matter. In October of the same year you were involved in a serious car accident and suffered some complications arising from it, including shoulder pain, headaches, balance and coordination issues. In February 2024 you underwent brain surgery and have ongoing medical appointments and scans. You managed to return to work in March 2024. Your pervious co-worker and now friend Fred Berger[14] refers to the hardships you have experienced, including the brain condition requiring significant surgery and states that despite these hardships you have remained a ‘respectful, compassionate, friendly individual.’
[14] A pseudonym.
54Ms Cruz gave evidence in Court and presented as an articulate, thoughtful young woman who is clearly very supportive of you. She is now a registered nurse and you are engaged to be married. She provided some further insights into your behaviours. You have struggled with emotions and low self confidence. She helped you obtain the referral to headspace and gave evidence that counselling has assisted in your emotional well-being. She referred to you suffering also from learning dyslexia and that you are in the process – which has not been an easy one – of helping you connect with a psychologist who may be able to assist in formally diagnosing ADHD or autism. Ms Cruz gave further details in relation to your medical conditions. She confirmed that it was not until December 2023 after many months of pain and discomfort that it was discovered that you were suffering from a brain condition arising from the motor vehicle accident. On 1 February 2024 you underwent brain surgery. As she understands it, in simple terms, this was designed to create more space in your skull to help relieve the pressure. Your brain sits lower than it is supposed to, and this needs to be monitored for the rest of your life, with regular scans and reviews. You have an MRI booked in later this month. You also have medical appointments relating to your ongoing knee issues, with the expectation that you will soon undergo a full knee replacement. Ms Cruz also indicated in cross examination that she had spoken to you about the charges. You have made no attempt to hide them and you present as remorseful. She reflected on your disadvantage, your lack of security and observed that you made mistakes that now as an adult you would not make and you are trying to better yourself.
55As for your biological parents, in 2016 when you were around 21 years of age you initiated contact with them as you wanted to know more about your childhood and what had happened. They came to your home but the meeting did not go well. There was aggression and hostility and it was very distressing for you and ultimately they were asked to leave. There was some further contact after this but this too was quite distressing and they have been asked not to contact you. Ms Cruz also gave evidence of this and how in particular your father presented as aggressive and intimidating.
56I take into account your past history and your personal circumstances. Your Counsel indicated that he did not quite rely upon Bugmy principles[15]. Rather, he submits that you are a ‘success story’, that is, having been the product of disadvantage and dysfunction you have nevertheless managed to succeed, as evidenced by your lack of any other criminal offending, the strong relationships you have forged, your solid work history and the significant efforts you have made to build a future for yourself. I take into account your personal background and experiences and also the initiative and efforts you have made, well supported it seems by your partner, to address some of the issues that you have struggled with.
[15] Bugmy v The Queen [2013] HCA 37.
Other mitigating factors
Delay
57With reference to the chronology that I have already outlined, the delay between the offending and the plea hearing is between 12 to 14 years (2011-2013). The delay between your police interview and charge is close to 3 years (May 2022). The delay between your police interview and the plea hearing is now approaching six years (July 2019).
58As accepted by the prosecution, the delay is largely unexplained and unacceptable. Also, as they correctly point out, the delay causes stress and trauma to many, including yourself and the victims here.
59Your Counsel submits that the delay has impacted you in three ways; the matter has been hanging over your head; you have demonstrated rehabilitation and there is also a ‘structural’ impact, in that you missed the opportunity to have your case heard in the children’s court or as a very young offender.
60The weight to be given to delay as a mitigating factor will depend on the particular circumstances of a given case. In your case, I accept that delay is a powerful factor in mitigation. This case has been hanging over your head for a substantial period of time, which would be difficult for many, particularly a young person. As your friend Darlene Sanford[16] states in her letter, the charges have significantly affected you and caused you ‘to put [your] life on hold for many years.’ She states ‘this has limited his ability to travel and caused him distress and anxiety when trying to plan for a future due to all the uncertainty.’ I also accept that the delay has provided an opportunity for you to demonstrate sustained rehabilitation, which I will return to in greater detail in a moment. Further, I accept that the delay has been impactful from a structural or procedural perspective, in that you were aged between 15-17 years old at the time of the offending and you are now nearly 30 years old. I take this into account and, in your case, it has significant implications. In such circumstances, the proper approach to sentencing was outlined by Priest JA in Sherritt v The Queen[17], relevantly quoting Nettle JA in Boland’s case -
... Decisions of this court in R v Nutterand R v Betterrecognise 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 …
[16] A pseudonym.
[17] Sherrit v The Queen [2015] VSCA 1.
Prospects of rehabilitation
61Your counsel submits, and I accept, that, when assessed against all relevant factors, your prospects of rehabilitation are excellent. You were very young at the time of the offending, a teenager but still only a child yourself. You have no prior criminal history. There has been no offending in between and there are no outstanding charges. You do not present with any substance abuse issues. You have managed to build a loving, caring and nurturing family unit. You have a demonstrated work history and developed skills. Over the years you have engaged in counselling and in more recent times have voluntarily undergone a mental health care plan and resumed counselling. The prosecution accept that you have done all you can to demonstrate your rehabilitation, which is to your credit, particularly given your background.
62I received a bundle of testimonials that collectively speak of you as hardworking and trustworthy and of your offending as inconsistent with the person they know. Your friend Odessa Rowe[18] in her letter has known you for three years and refers to your behaviour as always ‘respectful, warm and appropriate.’ Georgina Greer[19], your partners sister, has known you for some 10 years and speaks of the trust she reposes in you to spend time with, and look after, her nine year old and 14-month-old daughters. She refers to your close relationship with her children and describes you as patient and nurturing, soft natured and shy. She states also, ‘with all the hardships Derek has faced in his life there has never been any blame placed on anyone from his behalf. Echoing what your partner also says, she continues ‘Derek has spent so many years trying to understand himself, understand and come to terms with the things he has been through and the life he has had, as well as understanding and learning about the person he is becoming. Derek has also put in so much hard work to be the amazing resilient kind and loving person he is.’ Her partner, Alton Cherry[20] also refers to the close and trusting relationship you have with his family and how you and your partner have ‘always been a safe place’ for his children to go, when needed. He states ‘Derek has spent a lot of time working hard to become what I feel is a very strong-minded and caring individual and is someone who adds great value to my family’s lives.’ Your former carer, Ms Holmes, with whom you reconnected in 2023 also describes you as a ‘kind, emotionally intelligent and considerate individual.’
[18] A pseudonym.
[19] A pseudonym.
[20] A pseudonym.
63Ms Richard also speaks of the respect and love you have shown her daughter and how you have helped care for and support her through her own medical challenges. She refers to watching you grow in confidence and ability and offers her ongoing support and guidance.
Sentencing purposes
64The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community. I have already referred to some of these objectives. Given your age at the time of the offending, while not excluded entirely, general deterrence carries significantly less weight[21] . I also accept your counsel submissions that community protection and specific deterrence also have little, if any, weight, given your circumstances and my findings as to you having achieved significant rehabilitation.
[21] See Rootsey v The Queen [2018] VSCA 108.
65I take into account the sentencing guidelines referred to in s5 of the Sentencing Act, where relevant in your case.
66I have also had regard to ‘current sentencing practices’ which relate to practices current as at the date of sentencing. Ultimately each case turns on its own particular facts and circumstances. The principle of equal justice also requires that regard be had to sentencing practices at the date of the offence when sentencing occurs after a substantial lapse of time[22]. I note that no specific submission has been made addressing this or a difference in sentencing practices.
[22] Stalio v The Queen [2012] VSCA 120.
67Your counsel submits that any sentence imposed should not stunt your rehabilitation. Relying on the principle of parsimony he submits that neither imprisonment or a community corrections order is warranted or necessary. He submits that an adjourned undertaking is within appropriate range.
68The Prosecution accept you were a child at the time of your offending and take no issues with the submissions made by your counsel as to the relevance of various sentencing principles. However, the prosecution submit that denunciation is important. Notwithstanding that you were young at the time, it is serious offending, the charges are rolled up and there are three victims who have suffered severely. The prosecution accept that rehabilitation looms large and submit that a community corrections order can help facilitate this while at the same time enabling the Court to express its denunciation and dispense just punishment.
69After much reflection and taking into account all the circumstances of your case and the principles of proportionality and parsimony I have reached the decision that an adjourned undertaking is the just and appropriate disposition. I make clear that I have factored in as important considerations the nature and gravity of the offending and its significant impact. However, I am also required to consider the unique circumstances of the case before me and reflect your young age at the time of the offending, your personal circumstances, the substantial delay in the finalisation of your case and your significant rehabilitation. I propose to release you on an adjourned undertaking for a period of 18 months. This is not an insignificant disposition. It keeps the matter open against you for an extended period of time, with conditions.
70The conditions that attach are that you are of good behaviour for this period. A further condition of the undertaking is that you undertake and complete a mental health care plan, which I understand you have either commenced or are in the process of doing so. You must complete a mental health care plan within 12 months of the undertaking and provide confirmation of same to the Court within this period of time.
71I am obliged as a matter of law to warn you as to what will happen if you breach the undertaking. The undertaking is a promise and you will break the promise by either committing a further offence during the 18 month period, which starts today, or failing to comply with the conditions. If you break any of the conditions you can be brought back before the Court and face breach proceedings and one of the things which can happen on a breach proceeding is that the undertaking is cancelled and you can be resentenced and you may receive a penalty for the breach itself. Do you understand?
72OFFENDER: Yes, Your Honour.
73HER HONOUR: On the question of whether a conviction should be recorded, your Counsel submits that it is not necessary. You may require a Working with Children’s Check in the context of sports or employment as a tradesperson and a conviction may fetter your ability to participate in your professional and family live. Ms Cruz also gave evidence that she has a medical condition that may affect her ability to have children. You are considering foster care or adoption and are concerned that a conviction may impact your prospects and that this is a matter that has been weighing on you. As discussed at the plea hearing, while this is largely general and speculative, I accept and take into account in the exercise of my discretion that you have been concerned as to how a conviction may impact your work and personal circumstances.
74The prosecution submit that, where there are rolled up charges and multiple victims, a conviction ought to be recorded. Further, they submit that it may also be that you can avail yourself of the spent convictions scheme.
75I have taken into account the relevant considerations listed under s.8 of the Sentencing Act. The section mandates that in exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including: (a) the nature of the offence; and (b) the character and past history of the offender; and (c) the impact of the recording of a conviction on the offender’s economic or social well-being or on his or her employment prospects.
76It is a difficult and finely balanced decision, given the seriousness of the offending and its impact on your victims, along with the compelling and unique circumstances of your case, as I have already canvassed. However, on the evidence before me and in all the circumstances, particularly in light of the multiple victims and the nature and impact of the offending, I have determined that a conviction is necessary and one will be recorded.
Sentence
77On the following charges –
78Charge 1 – Indecent act
79Charge 2 – Indecent act
80Charge 3 – Indecent act
81Charge 4 – Indecent act
82Charge 5 – Indecent act
83With conviction, an 18 month adjourned undertaking with conditions –
84Good behaviour 18 months;
85Within 12 months undertake and complete a mental health care plan, and you will need to provide confirmation to the Court, so with registry, that you have done so. Do you understand?
86OFFENDER: Yes, Your Honour.
87HER HONOUR: An application for Sex Offenders' Registration is discretionary in your case and no such application has been made by the prosecution. I indicate that in all the circumstances and for all the reasons I have canvassed I accept your Counsel’s submission that it is not in the interests of justice, nor necessary, to make such an order.
88I am not required to provide a s6AAA declaration and will not do so, but I make clear, Mr Jefferson, that the way in which you have settled this matter and your pleas of guilty have been important factors that this Court has taken into account.
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