Director of Public Prosecutions v Jenkins (a pseudonym)

[2019] VCC 126

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MORRIS JENKINS (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	23 January 2019
DATE OF SENTENCE:	14 February 2019
CASE MAY BE CITED AS:	DPP v Jenkins (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 126

REASONS FOR SENTENCE
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Subject:                   Plea - sentencing

Catchwords:           Indecent act with child under 16 – attempt indecent act with child under 16

Legislation Cited:    Sentencing Act 1991, Sex Offenders' Registration Act 2004

Cases Cited:

Sentence:                2-year Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Warren	Office of Public Prosecutions
For the Accused at hearing For the Accused at sentence	Ms D. Price and Ms A. Burnnard Ms A. Burnnard	Dribbin & Brown Criminal Lawyers

HIS HONOUR: 

1Morris Jenkins[1], you have pleaded guilty to four charges of indecent act with or in the presence of a child under 16 and one charge of attempted indecent act with a child under 16. 

-    Indecent act with or in the presence of a child under 16 carries a maximum penalty of ten years' imprisonment

-    Attempted indecent act with a child under 16 carries a maximum penalty of five years' imprisonment.

[1]Morris Jenkins is a pseudonym

2You are now aged 35 and you were aged between 16 and 22 when this offending occurred.  You were 33 when the offending was reported. 

3You have no prior or subsequent criminal history of a similar nature. 

4By way of background, you are the youngest of ten children born to parents living in a rural area. The victims’ mother, Carolyn Baker[2], was your parents’ sixth-born child.  When she married Steve Baker[3] she moved from the farm, ultimately living in a property near your parents’ farm.

[2]Carolyn Baker is a pseudonym

[3]Steve Baker is a pseudonym

5The first victim in this matter is Kay Baker[4].  She was aged between 10 and 12 years at the time the offence was committed.  Kay was 26 years of age when she made her formal complaint.  She is the eldest daughter of Carolyn and Steve Baker.

[4]Kay Baker is a pseudonym

6The second victim in this matter is Tracey Baker[5].  She was aged between 7 and 13 years of age at the time the offences were committed.  Tracey was 24 years of age when she made her formal complaint.  She is the youngest daughter of Carolyn and Steve Baker. 

[5]Tracey Baker is a pseudonym

7Carolyn and Steve Baker also have a son who is now aged 23. 

8You are the maternal uncle of the victims. 

9At the time of the offending only you and your older sister remained living at your parents' farm.  In 2002 you married and moved out of your parents' house.  As you still worked on your parents' farm sporadically, it was not unusual that you would spend most of your time there or would stay there overnight. 

10In July 2003 the victims moved with their parents to live in South Australia.  After they had moved the family would return to Victoria every six to eight weeks.  When they returned to visit Victoria they spent time between their own home – in which you and your wife were living - and their grandparents' farm. 

11The victims and their family returned to live in Victoria in 2007.

12The circumstances of the offending are as follows. 

13First, as to the offending against Kay Baker: on an occasion between 26 October 2000 and 26 October 2002 when Kay Baker was between 10 and 12 years old she was staying at her grandparents' farm during school holidays.  She was standing in her room at the rear of the house when you came and stood in the doorway.  You took your penis out of your pants and started masturbating it.  The victim touched your penis.  This is an uncharged act.

14While you masturbated you put one of your hands down the front of the victim's pants and into her underwear and touched and rubbed her vagina.  This conduct constitutes Charge 1, indecent act with a child under 16. 

15You then ejaculated and the victim saw what she describes as "stuff" coming out from the top of your penis that was greenish in colour.  The victim did not know what it was and thought, "What the hell is that?"  You then stopped and the victim cannot remember which one of you “walked off”.

16As to the offending against Tracey Baker: over Christmas holidays between 24 August 1999 and 24 August 2001, when Tracey Baker was aged seven to nine, she was staying at her grandparents' house.  You picked her as your partner in a game of hide and seek.  You both hid behind a row of cypress trees in the driveway and you rubbed her vagina area over her clothes.  This constitutes Charge 2, indecent act with a child under 16.  She stood there and pretended it was not happening.

17On an occasion between 24 August 2002 and 24 August 2003 when Tracey was aged about 10 or 11 she had returned to Victoria from South Australia during school holidays.  She was staying at her family's home that you were living in while they were away.  She was asleep in her brother's bedroom when you entered.  You grabbed her hand and put it on your penis, forcing her to masturbate you.  This conduct constitutes Charge 3, indecent act in the presence of a child under 16. 

18You then let go of her hand and put your finger on her vagina.  This conduct is represented by Charge 4, indecent act in the presence of a child under 16. 

19You then walked out of the bedroom. 

20On an occasion between 24 August 2004 and 24 August 2005, when Tracey was aged between 12 and 13 years of age, she was staying with her sister at her grandparents' house.  She was menstruating at the time. 

21Tracey was asleep on a couch in your former bedroom when you woke her by putting your hand under the bed covers and pulling her pyjama bottoms and underwear down to just below her hips.  You then tried to put your hand into her underwear, but she had pushed your hand away as she had a sanitary pad in place and thought it “wasn't fair".  This conduct is represented by Charge 5, attempted indecent act in the presence of a child under 16. 

22Tracey then pulled her pants back up, rolled over and went back to sleep.  You did not say anything during this time. 

23As to the complaint, Tracey Baker did not disclose what you were doing to her as she felt guilt and shame and was concerned that if she did tell her parents it would break up the family. 

24During April-May 2016 Kay Baker contacted her mother and told her that she wanted to speak with both her parents about something.  On a Friday night Kay, Tracey and her brother arrived at their parents' house.  On arriving, Kay told her parents that they were not going to "like this" but that she had been seeing a psychologist because you had been “molesting” her since she was a child.

25Carolyn Baker told her children that if they wanted to talk to her about it they could but that she did not want to know the details. 

26Steve Baker later rang you and asked you why you had molested his children and that he did not want anything further to do with you.  You did not say much in response apart from "Yep".

27On Sunday 18 September 2016 arrangements were made for you to attend at the local police station and at 9.17 am a formal interview in relation to the allegations was conducted by the investigating Detective Senior Constable.  During that interview you made significant admissions.     

28A victim impact statement from Kay Baker was tendered.  In her statement she speaks eloquently and comprehensively about the effects, both emotional and physical, that often follow instances of sexual abuse.  I accept there is some qualification to be allowed by the fact that you are not the victim's sole abuser. 

29I now turn to your personal circumstances. 

30As I noted earlier, you are now aged 35.  You were aged from 16 to 22 when this offending occurred and you were 33 when the offending was reported. 

31You grew up on a remote family farm in country Victoria, you being the youngest of ten children.  Your parents were deeply religious and very restrictive.  You were allowed no friends outside the church.

32Whilst you were permitted to attend primary school, you were not permitted to attend secondary.  You were home-schooled for two years whilst you worked full time on the farm.  You had started working on the farm from seven to eight years of age, with your responsibilities being increased after your father became seriously ill and was unable to work.  As you got older you commenced tractor work, and at 15 you also began working for a farmer down the road. 

33You have described the period on the farm as being isolating and lonely: "A horrible, depressing place, all work.  I never had friends over.  I was not allowed to go to friends' places.  All work, not allowed to have fun, not allowed to be a kid". 

34You suffered sexual abuse yourself from ages seven to eight from two older sisters and an older niece. 

35Your eldest sister has admitted to sexual offending against Kay and has been sentenced.

36You have also described that period at the farm in these terms:  "… I was experiencing a very dark period in life.  It started when I was 10 or 11 years old and went on until I was around 25 or 26 years of age.  At age 25 or 26 I saw a psychologist and was diagnosed with depression".  You were prescribed Zoloft. 

37I note also that you have reported suicide ideation when aged around 12 to 14 years.

38You came to see the church as a reprieve from your home life and were married at 18 to a girl from your church.  She was the first girl you had socialised with outside your family.  You became a father at 20 and you have two children now aged 15 and 13. 

39The marriage did not last and eventually ended in 2014.  You have continued to have a level of contact with your children.

40In early 2016 you met your current partner.  She is the mother of two children now aged 12 and 14.  You have been living together now for two years and have planned to marry next year. 

41You have been working in recent years as a truck driver for a company based in a country town and have been building your own waste removal and transport business.  You have worked hard all your life.

42A psychological report from Ms Pamela Matthews was tendered on your plea.  In her opinion you experienced a very curtailed development in your adolescent years which has played a significant part in your offending.  Ms Matthews estimates that your risk of reoffending is low, particularly if you engage with the Better Lives program offered by Corrections Victoria.

43In mitigation I take into account the matters urged on your behalf by your counsel, including:

·    the period of time that has elapsed since the offending - I accept some moderation should be applied for the different circumstances in your life that have developed over the years;

·    your age at the time of offending - the age range does not establish beyond reasonable doubt that you were yourself over 18 years at the time of the offending in respect of Charges 1 and 2;

·    that you have no record of previous or subsequent offending of a similar nature and that your prospects of reoffending are low;

·    the insight and remorse that you have developed over the years into your offending and its effect upon the victims;

·    the roles that victimisation, sexual pre-occupation, social isolation, attitudes and thought patterns played in your offending when you were younger, and your own age and level of maturity at the time of commission of the offences;

·    your continued history of employment and current stable relationship, lack of problems with substance abuse and willingness to seek treatment;

·    the support you receive from your partner and others reflecting the expressions of support in the character references tendered on your plea. 

44Ordinarily the kind of behaviour in which you engaged would attract a sentence of immediate imprisonment, notwithstanding your otherwise good character and the fact that the offending took place many years ago.  The mere fact of delay cannot alter what needs to be applied to reflect the serious nature of sexual offending against children.  However, I am satisfied that the circumstances of your offending are not of the usual kind. 

45You lived a very isolated and oppressed life when very young with very restricted social development.  The nature of your development was aggravated by the fact that you yourself experienced sexual abuse within the family from your older sisters and an older niece.  The result of that development impacted upon your mental health.  You ultimately gained insight and understanding of the impact of your own acts and sought professional help.  I am satisfied that the purpose or purposes for which the sentence is imposed can be achieved by a sentence that does not involve your confinement.

46Mr Jenkins, would you please now stand. 

47On Charges 1, 2, 3, 4 and 5 you are convicted and ordered to serve a community correction order for a period of 24 months. 

48The community correction order commences today and ends on 13 February 2021.  The Corrections centre you will attend is the Frankston Community Correctional Service at 431 Nepean Highway, Frankston and you must attend there within two clear working days after the commencement of the order, that is, by 4 pm this Monday, 18 February 2019. 

49All the mandatory terms of a community correction order apply and the additional conditions I impose are that:

·    you be under the supervision of a community corrections officer;

·    you perform 100 hours of unpaid community work as directed by the regional manager;

·    you undergo mental health assessment and treatment, including but not limited to mental health, psychological, neuropsychological and psychiatric, if necessary in a hospital or residential facility as directed by the regional manager - I do not expect that is at all likely, but it is part of the order that gives a broad discretion to the regional manager; and

·    you participate in programs and/or courses that address factors relating to your offending behaviour as directed by the regional manager, with recommendation of the Sex Offender Program. 

50I will now explain the mandatory terms of the community correction order.  The mandatory terms are that:

·    you must not commit another offence for which you could be imprisoned during the time that the order is in force;

·    you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2011, which essentially set out your obligations as to your attendance at the community correctional centre - that involves such things as not attending drug or alcohol-affected;

·    you must report to and receive visits from a community corrections officer;

·    you must report to the community correction centre, that is the Frankston centre, within two clear working days of the order starting, and as I have already indicated, that is this Monday, 18 February;

·    you must notify a community corrections officer of any change of address or employment within two clear working days after the change;

·    you must not leave Victoria without first getting permission to do so from a community corrections officer; and

·    you must obey all lawful instructions from and directions of community corrections officers - such directions may be given either orally or in writing.

51Do you understand and agree with those conditions, Mr Jenkins?

52OFFENDER:  Yes, Your Honour.

53HIS HONOUR:  Now, if you get sick or if there are exceptional circumstances the order may be suspended for a period of time.  If your circumstances materially alter you may apply for a variation or cancellation of the order.  In either case you must notify the Frankston Community Corrections Centre, and I recommend that you obtain legal advice if any of these things happen.

54However, I must warn you that if you breach any condition of this order you will be brought back to court, and that will be back before me.  One of the options open to me is to cancel the community correction order and resentence you on the original charges and I may also deal with you for the breach, which is itself an offence, with a penalty of imprisonment of up to three months.  So, Mr Jenkins, do you understand the consequences of breaching your community correction order?

55All right.  I will ask you to sign the community correction order shortly and you will have a copy so that you can be reminded of the terms and conditions of the order.  There is a further matter that I need to attend to.  You may take a seat for the moment, Mr Jenkins.

56The charges to which you have pleaded guilty are what are known as registrable offences pursuant to the provisions of the Sex Offenders Registration Act 2004 and, by reason of your being sentenced for these offences, you are a registrable offender obliged to comply with the reporting obligations imposed by that Act. Pursuant to s.50 of that Act I am required to give you written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations.

57I am also required to inform you of the length of your reporting period, which in your case is for life, and that has been confirmed by counsel after some consideration and analysis.

58My associate will shortly hand to you the Notice of Reporting Obligations, which I have already signed.  Your counsel in court here today, Ms Burnnard, will ensure that you understand the requirements set out in this form and I will ask you, once it is given to you, to sign the Acknowledgement that you have received the Notice form and to return the Acknowledgement to my associate.

59At the plea hearing the Crown sought an order which was consented to for the taking of a forensic sample and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, the order is by consent and the granting of the order is in the public interest.

60I need to inform you that if, at the time of the request of the sample, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.  Do you understand that, Mr Jenkins?

61HIS HONOUR: Pursuant to s6AAA of the Sentencing Act I declare that but for your plea of guilty the sentence that I would have otherwise imposed would be a total effective sentence of three years' imprisonment with a non-parole period of 18 months.

62If I could just ask now for the papers to be provided to counsel for signing by Mr Jenkins. 

63COUNSEL:  As Your Honour pleases.

64HIS HONOUR:  Mr Jenkins, the question just about working with Corrections, it's all about communication.  If you have trouble because of your back or other issues, just let them know.  Because they're there to work with you, not against you, and they'll work with you so you can get this completed in a way which is satisfactory to everybody.  So you're working hard, you're trying to do a lot and you're going to find times doing this extra bit of work difficult, but if it gets overwhelming just speak to them about it and let them know, all right? 

65MS BURNNARD:  As Your Honour pleases.

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