Director of Public Prosecutions v Jenkins
[2015] VCC 165
•6 March 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01105
Indictment No E10212487.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WARREN LESLIE JENKINS |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 17 December 2014 | |
DATE OF SENTENCE: | 6 March 2015 | |
CASE MAY BE CITED AS: | DPP v Jenkins | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 165 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | ||
| For the Accused |
HER HONOUR:
1 Warren Leslie Jenkins, you have pleaded guilty to two charges of indecent act with a child under the age of sixteen. The maximum penalty for that offence is ten years’ imprisonment.
2 The circumstances of your offending are set out in the Summary of Prosecution Opening which was tendered as Exhibit A. Both offences occurred on 16 January 2014. At that time you were renting a bungalow in the backyard of a lady. The complainants are twin sisters and the granddaughters of the lady. They were six at the time of the offences. The children were staying with their grandmother for a few days. It was a hot day and they were playing in the backyard wearing only underpants. You were watering the garden and wet the children with the hose. You then told them to go into your bungalow. You took off the first complainant’s underpants and then your own clothing. You showed your penis to the girls. You wiggled it and asked them to drink it. Neither of them touched your penis. You then lay face down on top of the first complainant on your bed. You rubbed her vagina with your fingers, causing her pain (Charge 1). The second complainant climbed on your back and tried to get you off her sister. You pulled the second complainant’s underpants down (Charge 2). She pulled her underpants up. The grandmother then came looking for the girls. She saw the girls in your bedroom, and one of the girls had no pants on. The grandmother then took the children inside.
3 Victim Impact Statements were tendered from the first complainant, the children’s mother and the grandmother. The first complainant describes feeling scared and says she sometimes gets angry and frustrated. The mother described her feelings of lack of safety and the detrimental effect this incident had on the relationship with her mother. She says that she has had increased anxiety and panic attacks since the offending. The grandmother describes the betrayal of her trust. She says she has been withdrawn and finds great difficulty in talking about the incident. She says since that time she has been anxious and over-protective with her grandchildren. She says she suffers from nightmares and feelings of guilt and questioning of her own judgment about who to trust.
4 In sentencing you I have taken into account your personal circumstances. You are a forty-two-year-old single man. Your father died in a motor vehicle accident when you were young and you were raised by your mother. You generally had a happy childhood, although there was some verbal abuse from your stepfather in your teenage years. You were an average student at school. In about Year 8 you started drinking alcohol. You left school during Year 10. You have worked in various jobs. You have been using cannabis heavily from the age of seventeen and alcohol heavily from the age of eighteen.
5 You have a limited prior criminal history, with no prior offending of a sexual nature. A neuropsychological report from Dr Rachel O’Meara dated 18 August 2014 was tendered. There had been some concern about your fitness to stand trial and the report was obtained to consider that issue. You were considered fit to stand trial but Dr O’Meara says that you have cognitive deficits consistent with an acquired brain injury which she considers likely to be due to your history of alcohol and cannabis abuse. Dr O’Meara also describes you as having clinically significant symptoms of depression and anxiety.
6 It is Dr O’Meara’s opinion that your deficits in themselves do not lead to disinhibition or difficulties controlling your emotions or faculties. She also says those deficits do not affect your ability to understand the wrongness of what you are doing. Dr O’Meara says you could not recall the details of your offending but you acknowledged your offending was wrong and said that you would not have acted in that way if you had not been intoxicated. You have said that you were heavily intoxicated on that day.
7 It is Dr O’Meara’s opinion that your cognitive deficits may lead to some difficulties if you are imprisoned, in the sense of understanding what the rules would be and in complying with them. Dr O’Meara is more concerned in respect of the potential negative impact of imprisonment on your mental health. She notes that you have had previous hospital admissions in relation to suicidal ideation. Dr O’Meara recommends psychological therapy, which she says should be aimed at improving your mood and would be likely to assist in maintaining your abstinence from alcohol and other substances.
8 A further psychological report was obtained from Mr Simon Candlish who provided a report dated 27 November 2014. Mr Candlish carried out a risk assessment on you and describes you as being in the moderate/low risk category for sexual recidivism. Mr Candlish says:
“It appears that his behaviour represented an opportunistic response in the context of his isolated lifestyle.”
9 Mr Candlish says that you lack the necessary coping skills to avoid engaging in such harmful behaviour. He suggests that you need assistance in pursuing and maintaining a pro‑social lifestyle, including reduction of alcohol consumption. Mr Candlish recommends treatment in relation to alcohol and participation in offence-specific treatment.
10 A letter from the First Step Program was tendered. That letter says that you have had counselling with that service since late 2010, although your attendances have been somewhat sporadic. You have attended six sessions with ISIS Alcohol and Other Drug Counselling Services since June 2014.
11 In defence submissions your counsel said that you have limited recollection of the events of that day but that you had been planning and saving for a “big binge drink”. You drank heavily that afternoon. You have said to counsel that you accept the evidence and feel disgusted by and unable to understand your own behaviour.
12 Your counsel acknowledged the seriousness of this offending but asked that it be taken into account that there was no evidence of any planning and that it was likely to be spontaneous and opportunistic isolated offending, in the sense that the offences were committed against the children on the same day and within a short period of time of each other. Your counsel also relied in mitigation on your plea of guilty and the utilitarian benefit of that plea of guilty, as well as your remorse. Your counsel asked that it be taken into account that you had no previous sexual or violent offending and a very limited prior criminal history.
13 Your counsel suggested, based on Dr O’Meara’s report, that you might experience difficulty in the prison environment due to your cognitive deficits and adverse impact on your mental health. Your counsel submitted that your mental health state was relevant in respect of how you might serve a sentence in application of Verdins principles.
14 In terms of your rehabilitation your counsel submitted that you were at low risk of reoffending and that you were determined to refrain from the offending. You currently had stable accommodation which would be a protective factor.
15 Your counsel submitted that if you were imprisoned you would be likely to be held in protection due to the nature of your offending.
16 Your counsel submitted that there were a number of relevant and significant sentencing factors, including general deterrence. She submitted that there need be given limited weight to specific deterrence, given that you had no relevant prior convictions. Your counsel submitted that your rehabilitation was linked to you addressing substance abuse issues and that the prospects of that were encouraging if you received appropriate assistance within the community. Your counsel submitted that a community correction order would be an appropriate sentencing disposition.
17 The prosecutor, in sentencing submissions, accepted that the fitness issue had needed to be dealt with, which had contributed to the delay in your plea of guilty. The prosecutor submitted that sentencing options, including a community correction order, were open.
18 By your plea of guilty you are convicted of two Class 2 offences for the purposes of the Sex Offenders Registration Act 2004. Accordingly you become a registrable offender and must comply with the obligations of that Act for 15 years.
19 Warren Jenkins, any offending against children is serious. In this case you acted opportunistically to take advantage of two very young and vulnerable children. You were much older than them. You offended against each in the presence of the other. This was a breach of the trust of the grandmother who had you living on her property and clearly considered that you were able to be trusted around the children. There is a further aggravating feature in the considerable disparity in age between you and the children. A sentence of imprisonment is warranted for the purposes of denunciation, just punishment, general deterrence and specific deterrence. That is my conclusion, even taking into account various matters in mitigation. Consistently with that conclusion after the plea hearing I remanded you in custody and that is why you now have 86 days served in remand.
20 You are entitled to a significant discount for your plea of guilty, which has saved the trauma and expense of a trial. I also accept that you are genuinely remorseful for your actions. I consider that your prospects for rehabilitation are reasonable provided that you are able to access further treatment in respect of your substance-abuse issues. It is concerning that despite previous treatment over a considerable period of time you have not been able to reduce your alcohol intake to an appropriate level. You have been willing to engage in the past in treatment, which is encouraging, but it is of concern that you have not responded to that treatment appropriately. It is to be hoped that this offending and the sentence to be imposed will serve to encourage you to properly engage in future treatment, in order to reduce the risk of you further offending to an acceptable level. It is also important in my view that you are given the opportunity to engage in offence-specific programs in order to address any underlying issues which contribute to you taking advantage of children in this way.
21 I consider that a sentence of imprisonment combined with a community correction order would appropriately meet the sentencing considerations that I have outlined and would provide the opportunity for you to engage in further rehabilitation under supervision to reduce the risk of you reoffending, in order to protect the community.
22 You have been assessed as suitable for a community correction order. I have outlined already to counsel the terms and conditions that I intend to impose and I understand you are prepared to consent to that order. Is that right, Mr Jenkins?
23 PRISONER: Yes.
24 HER HONOUR: I will going again through what the conditions would be. I propose to sentence you in respect of Charge 1 of indecent act with a child under the age of 16 to a term of imprisonment of six months to be followed by a Community Correction Order for a period of 18 months with the special conditions that you be supervised, monitored and managed by the Secretary to the Department of Justice - that means in effect by someone from the Office of Corrections - that you undergo assessment and treatment for alcohol abuse or dependency; that you undergo mental health assessment and treatment and that you participate in an assessment for a program that addresses factors relating to your offending behaviour and participate in that program if assessed as suitable. I have not made a drug-specific condition because I consider that alcohol abuse is the primary issue and if that is dealt with, I consider it unlikely that you will have other substance abuse issues. Do you consent to the making of that Community Correction Order?
25 PRISONER: Yes.
26 HER HONOUR: Thank you. So I sentence you to that sentence. In respect of Charge 2, I sentence you to a term of imprisonment of four months.
27 The offending is closely connected in circumstances and time. I consider that it is appropriate that sentences of imprisonment be served concurrently.
28 The total effective sentence is six months' imprisonment.
29 I declare that you have served 86 days of that sentence by way of pre-sentence detention to be deducted administratively.
30 But for your plea of guilty I would have sentenced you to a total effective sentence of 20 months' imprisonment with a nonparole period of 15 months.
31 There has also been documentation prepared advising you of these requirements of the Sex Offenders Registration Act. My associate will come up to you with Ms Munster for you to sign the community correction order forms. You will also be asked to sign a form to say that you have received the sex offender registration documentation, so Ms Munster can explain that to you when she comes up there and Ms Ollquist will come with her with with the relevant documents. Thank you, Ms Munster.
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