Director of Public Prosecutions v Jones
[2021] VCC 159
•15 February 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-19-01708
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEXANDER JONES |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 February 2021 |
DATE OF SENTENCE: | 15 February 2021 |
CASE MAY BE CITED AS: | DPP v Jones |
MEDIUM NEUTRAL CITATION: | [2021] VCC 159 |
REASONS FOR SENTENCE
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Subject: Criminal Law Sentence
Catchwords: Sexual penetration of a child under 16 – Refused application for change of plea – Significant age difference – Single incident –Mid-range offence - Aboriginal offender – significant disadvantage and trauma in childhood – reasonable prospects of rehabilitation.
Legislation Cited: s 5A(1)(a) Sentence Act 1991 (Vic)
Cases Cited: Brown v The Queen [2019] VSCA 286; Bugmy v The Queen (2013) 249 CLR 571
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. McKenry | Director of Public Prosecutions |
For Accused | Ms M. Brown | Slades and Parsons Criminal Law |
HIS HONOUR:
Alexander Jones, you have pleaded guilty to one charge of sexually penetrating a child under the age of 16. The maximum penalty for this offence is 15 years imprisonment.
The offence is a standard sentence offence having been the fact that you committed after 1 February 2018. The standard sentence for this offence is six years imprisonment.
Circumstances of offending
The circumstances of your offending were outlined in the Prosecution of Summary Opening, which was Exhibit A on your plea and forms part of these reasons for sentence.
The offending conduct subject to this plea occurred in May 2018 when you were aged 30 and you befriended the 13-year-old victim in this matter. On 27 May 2018 you engaged in an act of anal penetration of the victim of your offending in a hotel in Belmont, a suburb of Geelong.
The circumstances of your offending began on late 5 May or early 6 May 2018 at Flinders Street Station when you approached the victim and his friend for a cigarette or a light. The victim gave you his Facebook contact details during this exchange.
Shortly thereafter, it was recorded that you accessed the Department of Health and Human Services (DHHS) database to access information on the victim. These login details were provided to you through your previous employment with Melbourne City Mission. You were able to log onto the DHHS database despite your employment with Melbourne City Mission ceasing on 13 September 2017, as your account details as a family mediation worker had not been cancelled.
Records show you attempted to access the victim’s DHHS file on 16 May 2018,
27 May 2018 and after the incident on 5th and 9 June 2018. There is no evidence that you were successful in retrieving any information. It is unclear to me what your motivation was for accessing the file, or what information exactly you hoped to gain, but I am satisfied that your attempts were consistent with your sexual interest in your victim.On 8 May 2018 you began exchanging messages with the victim via the Facebook messenger application. In some of these messages you invited the 13-year-old victim over for a drink in a hotel room.
On 26 May 2018 the victim agreed to meet up. This meeting took place that night at Hungry Jacks in Carrum Downs. The initial plan upon meeting was for you to buy alcohol for the victim and you would both drink it at your hotel room. However you did not have enough money on that occasion and instead bought the victim a pie and chips at a service station for dinner.
After eating, you performed burnouts in your car with the victim and then slept in the back of the car together. Nothing of a sexual nature occurred on that occasion.
The next day you took the victim for another drive when he began receiving messages from his friends to meet. The victim told you that he was having reservations about continuing with the plan to spend the day together given you had already told the victim you were low on money.
You responded by making the victim feel guilty about leaving, pointing out that you had come a long way to see him and had bought him dinner. The victim agreed to stay with you as previously intended.
You left the victim at a nearby factory before returning a short time later with money. You bought cigarettes and asked the victim to go go-karting with you, to which the victim agreed.
You drove with the victim to Ace Go-Karts in Sunshine and the victim filled out some forms which were required before he could use the karts. These forms along with your bank account records show that you attended with the victim at Ace Go-Karts on 27 May 2018 at approximately 5:30 pm.
After the go-karting you drove the victim to the Parkside Motel in Belmont. Records show you reserved a room for two nights for two adults under your own name and contact details. Your bank statements confirm this. In the context of other material, including Facebook messages and your access of DHHS information, these records formed a damning piece of evidence in the case against you which would have presented a near insurmountable hurdle had this matter proceeded to trial.
Upon entering the room, you began to drink and smoke cigarettes with your young victim, which you had bought earlier. At some point you suggested a game of ‘truth or dare’.
The game whilst innocuous at first, evolved to a point where the victim was being sexually exploited. This included you watching the victim urinate in the toilet and getting him to show you his penis. The last demand you made to the victim was that he take off his pants, which he did on the condition he could cover himself with a blanket.
Shortly after the game concluded the victim went to bed as he began drifting in and out of consciousness. It is at this about this time you climbed on top of the victim and told him to get naked. The victim agreed out of fear and confusion.
Once you were both naked, you grabbed the victim’s shoulder and turned him on his stomach, proceeding to anally penetrate him with your penis continually for 10 minutes.
The victim describes the experience as the worst thing he has felt. You only stopped after he told you that the penetration was causing him pain.
Following the incident, you drove the victim to a nearby train station and left him there after purchasing and providing him with a Myki card.
You have not attempted to contact the victim since. However, as previously outlined, you attempted on two occasions in June 2018 to access his DHHS file.
In July 2018 the victim suffered what has been described as a ‘melt down’ because of your offending against him. It resulted in the victim’s mother having to hold him down while police were called, he was that distressed and disturbed. The victim was hospitalised following the incident.
At about this time, the victim disclosed to his sister’s boyfriend that he had been raped, mentioning you by name. This information was eventually shared amongst the family.
On 9 January 2019 the Brimbank Sexual Offences and Child Abuse Investigation Team (SOCIT) were contacted by DHHS, which instigated the investigation into your offending culminating in your plea of guilty.
Gravity of Offending
An offence of this nature is a very serious offence. The protection of children in our community from predatory behaviour such as yours is paramount. The victimisation of children through sexual violence is extremely damaging and the effects are often life-long. There is also a ripple effect of impact on those around a victim as we have seen in this case.
Your own trajectory through life tells a tale of how childhood trauma including sexual abuse can shape future behaviour and interaction with others in a destructive way, often involving drug and alcohol abuse, and behavioural and social dysfunction.
Both the prosecutor Mr McKenry, and defence counsel Ms Brown, submitted that your offending was a mid-level or mid-range example of the offence. I took these submissions to be references to my overall assessment of the circumstances of the offence in the conventional way – see Brown v The Queen at [55]-[57][1] – rather than as a reference to the Standard Sentencing Scheme and s5A(1)(a) of the Act.
[1]Brown v The Queen [2019] VSCA 286
Mid-range is not a precise point of course and embraces a range of sentences. Rather than adopt that terminology, I consider that the circumstances of your offending include the following relevant factors:
i) You were more than double the age of your victim. He was a mere 13 years of age;
ii) The lead up to your offending involved a degree of manipulative and predatory behaviour. He was unsupervised by adults, alone and susceptible to your advances. Your offending fits the description of ‘predatory’;
iii) You plied him with alcohol;
iv) Once at the hotel you had unfettered access to him. He was extremely vulnerable in that situation;
v) Whilst you are sentenced for a single incident, it was of 10 minutes duration and caused pain, discomfort and confusion to your victim, not to mention fear.
Victim Impact
The impact upon your young victim and his family can only be described as severe and extremely grave.
The shock waves of your offending resonated throughout your victim’s family. Your victim descended into a maelstrom of mood and psychological disturbance at the extreme range, and dangerous substance abuse at the age of 13, as a direct result of the trauma inflicted by you. He was silenced by the fear and confusion instilled in him by your callous and abusive conduct. The nightmare of dealing with this for his mother and sisters is apparent from the victim impact material.
Victim impact statements were read to the court from your victim, his mother and his sister. They were each powerful and devastating and I take them into account.
Personal Circumstances
I turn now to your personal circumstances. As stated above, you were aged 30 at the time of offending, you are now aged 32.
You were born on 17 January 1988 in Queensland and were raised both there and in New South Wales. You are an Aboriginal man from the Gubi Gubi people of South East Queensland. You have extended family in the community, but they have broken ties with you after learning of your offending.
Ms Brown, as counsel on your behalf, carefully outlined your personal circumstances and history as one of neglect, violence and turbulence.
The deprivation, trauma and disadvantage you experienced as an infant and as a child and young adult is inescapable. It is documented in social work reports that were subpoenaed by your previous legal representatives; and this lengthy documentary history will be Exhibit 4 on the plea.
Ms Brown set out salient points from this history in her outline. The documentary history fills out these headlines.
You were born the younger of two children in your immediate family, having an older sister. You and your sister were removed in infancy from your parents due to their drug abuse, mental health issues and the presence of family violence in the home.
Your first long term placement through Barnardos Foster Care ended in December 1990, when authorities became aware that the foster carer’s brother had sexually abused you and your sister.
You were reunited with your parents between May and June 1990, but removed from the home again and placed in foster care due to your mother experiencing a psychotic illness which required hospitalisation. Montrose Child Protection Unit records dated September 1990 described the circumstances of you and your sister at the time of removal as being ‘hungry, dirty and naked.’
Sometime after 1992, you were again placed with your mother. I’m told she was abusive and continued a sporadic and violent relationship with your father that eventually ended in your early teens. Your father died of alcohol-related liver problems a few years later. Your mother is described as schizophrenic with a heroin and alcohol addiction.
You have several half-siblings but you have no contact with them.
You and your sister were very close, understandably given the bond of surviving the history of trauma, neglect and abuse together. Tragically she committed suicide around 2006 or 2007.
Between the ages of 13 and 23 your housing situation was precarious, as you were primarily homeless staying with friends when able. This ceased somewhat between the ages of 17 and 19 as you secured transitional housing as a disadvantaged young person, however this protective factor was removed once you became too old to qualify for a room.
During your early years of homelessness you were sexually exploited by older men and paid in cash or drugs.
You did not attend school past Year 7, which is hardly surprising given your disadvantage. To your great credit however, you did complete a Year 12 equivalent TAFE course at Holmesglen during your time in transitional housing.
Despite your dire circumstances you have persisted with finding work and education when you could. This has included being employed at McDonalds for two years and, as I have mentioned, working at Melbourne City Mission.
You have a criminal history which was provided by the prosecution after the plea, that discloses largely shoplifting and public transport transgressions. Given your background I find it has no relevance in the sentencing exercise before me.
Psychological and Supporting Material
You reported that you began drinking and using drugs and alcohol from the age of 11 which escalated quickly from 12 onwards.
You attempted to address your drinking by attending Alcohol Anonymous for several years and remained sober until 2017 when you relapsed after the death of a friend in a motorcycle accident. This resulted in your retracting from the world and living in your car.
A report authored by Dr Aaron Cunningham dated 28 January 2021, was tendered at your plea as Exhibit 2. The report, along with reiterating your diagnosis of epilepsy resulting in grand mal seizures, finds that you have a tendency towards self-destructive behaviour.
Dr Cunningham opines that you most likely fit the criteria for a borderline personality disorder. Most notable are the following traits which constitute some of your reported anti-social behaviours;
a) Frantic efforts to avoid real or imagined abandonment, including self-sabotaging relationships;
b) Disturbances in your self-image and sense of self;
c) Impulsivity taking the form of self-damaging behaviours like substance abuse and binge eating;
d) Poor emotional regulation;
e) Chronic feelings of loneliness and emptiness; and
f) Disassociation with reality, including a feeling that things are not real.
Dr Cunningham concludes that your diagnosis of borderline personality disorder stems from your neglect and abuse as a child leaving you with an inability to form healthy emotional connections.
Dr Cunningham opines that your alcohol and drug abuse was a method of self-medicating and your homelessness and lack of social interactions spurred your feelings of loneliness.
He found you as being a moderate risk of sexual reoffending.
Matters in Mitigation
Bugmy
Your personal history is one which I am satisfied gives rise to the full effect of the Bugmy principles.[2]
[2]Bugmy v The Queen (2013) 249 CLR 571
The disadvantage and trauma you experienced in your formative years sits within the inadequate description of ‘Aboriginal disadvantage.’ That descriptor is shorthand for what the courts have come to understand over decades as a context of disadvantage that is often present in the lives of some Aboriginal offenders. Whilst you did not grow up in a remote community your life story is nonetheless one that is all too familiar for many Aboriginal offenders and is one that has its roots in the inter-generational trauma and despair that forms part of the legacy of colonisation; including dispossession, discrimination and subjugation.
Your exposure to alcohol from the tender age of 11 and your subsequent battle with alcohol abuse, the neglect and absence of guidance throughout your development, and the trauma including sexual abuse you experienced, and how that interacts with your borderline personality disorder, provide relevant background to your offending.
In Bugmy the High Court described the manner in which factors of disadvantage are relevant to an assessment of an offender's moral culpability in the following terms:
'The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way[3]…. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make up and remains relevant to the determination of the appropriate sentence, notwithstanding the person has a long history of offending.'[4]
[3] Ibid, [40].
[4] Ibid, [43].
Whilst alcohol abuse was not a driving factor in your offending, the role alcohol played in relation to your circumstances at the time of the offending, as well as your borderline personality disorder, together with the other aspects of childhood deprivation I have referred to that shaped your life, are all relevant to my assessment of your moral culpability.
Importantly, you do not have a history of violence or sexual offending. This offence, grave as it is, is a one-off in your history.
I accept that you have reasonable prospects of rehabilitation, particularly in light of the achievements you have attained in your life despite your disadvantage. You have a limited history despite the challenges you have faced in your life and the lack of social supports. I make this finding despite concerns surrounding your insight into and acceptance of your offending, given you had previously maintained your innocence. I note the following in Dr Cunningham's report at p.4. He writes,
'Mr Jones continued to struggle to come to terms with his offending. He vacillated between acknowledging his culpability and denying his actions.
Mr Jones stated that he was homeless at the time of the offending, he was intoxicated with alcohol and he was ‘really lonely’ at the time as his girlfriend had left. He stated that he feels really bad about contacting the victim. He stated that he put the victim in a bad situation. He has realised he needs help in gaol. He has engaged with drug and alcohol support in gaol.'
Hardship in Custody
You have been in custody since the 25 February 2019. You only have pre-sentence detention available to you from 26 April 2019, however I consider it appropriate that I take into account the fact that you have been in custody for almost two years.
Your time on remand has been difficult. You have been assaulted in custody. You have experienced grand mal seizures frequently. You have been unable to access specialist medical treatment in custody, with your neurological referral remaining outstanding some 14 months after it was made.
In particular, you have been in custody throughout the COVID-19 era of restrictions and uncertainty.
I have no doubt you have experienced significant anxiety in custody due to the pandemic. Your experience in custody has also been more restrictive and there have been no in-person visits available since approximately March last year.
Your experience in custody coincides with your disconnection from your community due to your offending.
I take all of these matters into account under the banner of hardship in custody and to some degree, extra-curial punishment.
Plea Guilty
You pleaded guilty in July last year. At the time a special hearing involving evidence from the Complainant, as he then was, was scheduled. Nonetheless there remains a significant utilitarian value to your plea of guilty notwithstanding your application for leave to change your plea. The fact remains that in the current environment the court remains in a state of crisis in terms of trial listings. The resolution of your matter carries with it a significant utilitarian value and accordingly, you are entitled to an appropriate discount.
As I have indicated at the outset, the Standard Sentencing Scheme applies to your matter, the standard sentence being six years. The standard sentence being the period specified as the standard sentence for the offence, as the sentence for an offence taking into account only the objective factors affecting the relative seriousness of that offence is in the middle of the range of seriousness. I take the standard sentence into account, as another legislative guidepost, as well as the maximum penalty guide post in the sense explained in Brown v The Queen [2019] VSCA 286.
The sentence I impose reflects my assessment of the objective circumstances of the offending in the conventional sense, including assessment of moral culpability. The sentence also reflects, the matters of mitigation set out in these reasons of sentence.
The sentence I impose reflects general deterrence, denunciation and a degree of specific deterrence. It is my synthesis of these and other factors, including my note of the legislative guidepost of maximum penalty and standard sentence, that shape the sentence I will impose.
General deterrence is a very significant factor, in sentencing for an offence of this nature. I must also impose a sentence that denounces your conduct on behalf of the community and I do so.
Sentence
I sentence you as follows, Mr Jones. In relation to the charge, you are sentenced to be imprisoned for six years.
I set a non-parole period of 3 years and 4 months.
That non-parole period is slightly less than the 60% designated by the legislature. I have considered that it is in the interests of justice to do so taking into account all of the matters I have set out in these reasons for sentence, but in particular what I found as your prospects of rehabilitation, your limited history and what I have referred to as the Bugmy factors.
I declare that you have served 661 days of that sentence by way of pre-sentence detention.
Pursuant to s.6AAA but for your pleas of guilty I would have sentenced you to a total effective sentence of 8 years with a non-parole period of 6 years.
As Charge 1 is a class 1 offence under the Sex Offenders Registration Act, you are a registrable offender and as such are required to report for 15 years and I direct that this be entered into the record of the court.
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HIS HONOUR: Are there any matters that I've overlooked, Mr Teo, in terms of orders?
MR TEO: I don't believe so, Your Honour, I know ancillary orders are sought.
HIS HONOUR: All right. Any other matters, Ms Austin?
MS AUSTIN: Your Honour. Yes, Your Honour, may I just confirm the pre-sentence detention Your Honour declared?
HIS HONOUR: I've declared 61 days, which should be the April date to today. Now if that calculation is wrong in any way - - -
MS AUSTIN: Your Honour, I have 671 days by my calculation.
HIS HONOUR: What I'll do, Ms Austin, thank you for that, is I'll stand the matter down and that can be corrected. I won't come back on the Bench, but I'll correct in the formal orders. Perhaps if you and Mr Teo can confer on that my associate will be available to discuss it and once we've arrived at the correct figure, the number of days' pre-sentence detention will be entered into my formal record. All right.
MS AUSTIN: Yes, Your Honour.
HIS HONOUR: Thank you. Yes, adjourn the court.
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