Director of Public Prosecutions v Kendall

[2015] VCC 623

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00297

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARTIN KENDALL (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2015
DATE OF SENTENCE:	14 May 2015
CASE MAY BE CITED AS:	DPP v Kendall
MEDIUM NEUTRAL CITATION:	[2015] VCC 623

REASONS FOR SENTENCE
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Subject:  Sexual penetration under 16.

Sentence:  2 years imprisonment. 
  Four years community corrections order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Smith
For the Accused	Ms G. Morgan

HIS HONOUR:

1In these sentencing remarks, I refer to you by the pseudonym, "Martin Kendall".  That is done to protect not only your identity, but most importantly the identity of your victim.

2You have pleaded guilty to two charges of sexual penetration of a child under 16.  The charges are agreed to be representative charges and are separated by a number of years.

3The offending in Charge 1 occurred between 7 February 2005 and
30 November 2012, a period of almost eight years.  The offending in Charge 2 occurred between the 1 May 2010 and the 26 of December 2012, a period of approximately two and a half years.

4During the period of your offending, the maximum penalty for the offence of sexual penetration of a child under 16 changed and your offending may have straddled the time of the change of penalty.  The prosecution properly concedes in the circumstances that the maximum penalty for each offence committed by you was ten years' imprisonment at the time you offended.

5The circumstances of your offending are outlined in a prosecution summary and submissions prepared by the learned prosecutor, Ms Smith.  That document was accepted by your counsel, Ms Morgan, as being accurate and as forming a proper basis upon which I can proceed to sentence you for these matters.

6It is not necessary that I here set out again what is there set out in detail, but these sentencing remarks need necessarily be read with what is set out in the summary.

7The victim in this matter is your second cousin.  She is now aged 16 and was aged between seven and 14 years during the period of offending.  You are now aged 25.  At the time of the offending you were aged between 16 and 23 years.  For two of the years covered by Charge 1, you were legally a child until you turned 17 years of age.  For most of the period of the second charge you were, at law, a young offender within the meaning of that term in the Sentencing Act.

8A very helpful chart appended to the summary sets out the circumstances of offending in a summary way.   Charge 1 is representative of four occasions of digital penetration.  The first occasion was during 2005 when the victim was in your bedroom when you were aged 16.  The second occasion was between January 2008 and May 2010, also in your bedroom when you were ostensibly playing games with the victim.  She was then aged nine to 12 and you were aged between 19 and 21.  The third occasion was at the victim’s home on a couch in May 2010, after you had confirmed that the victim’s brother also present was asleep.  The victim was then aged 12 and you 21.  The fourth occasion was in November 2012, in a car, when you drove the victim from a family gathering to some shops.  She was then aged 14 and you 23.

9Charge 2 is representative of two separate occasions of penile vaginal penetration.  The first occurred at the victim’s home when you were babysitting.  She was then aged 12 and you were 21.  The second and final occasion occurred on 26 December 2012, when you went to your aunt’s home.  The victim was there and you offered her a lift, instead driving her to a motel where the offence occurred.  She was then aged 14 and you 23.

10There is no doubt that what you did was serious offending.  You were older and in a position of power over the victim.  The summary makes it perfectly clear that the victim made it very clear to you that she did not want you touching her sexually in the way that you did and she attempted to resist your advances on numerous occasions, particularly as you both got older.  Both you and the victim are Sudanese and the offending must be seen to have occurred in a related family context.  In that sense it was opportunistic offending.  Because the victim was so young, at least in the early days, it is most likely that she did not understand what you were doing to her and did not know what to do about it.  As I have said, you too were young but you were so much older than the victim that you must have known that what you were doing was wrong, even when you were aged 16 and the victim seven, when you commenced offending.

11It is to your credit that you have pleaded guilty to the charges.  By so doing you have saved the time and costs of a trial and you have saved your victim and other members of her family and your immediate family from having to give evidence. 

12The complainant revealed what you had been doing to her to a school friend.  The school was informed and the police became involved.  That was in May 2013.  You were arrested and interviewed in relation to the charges on
11 October 2013.  You either made no comment to the questions asked of you, as is your right, or you made denials.  You were remanded in custody for three days and then bailed on 14 October 2013, but your bail was revoked on 4 December 2013 and you have been in custody on remand since that time.

13There was a committal on 19 February 2014, but the victim was not
cross- examined.  On 26 June this matter resolved, some 11 days before the trial date.

14You have been on remand in protective custody with resolution of these charges hanging over your head for 17 months.  Ten months have elapsed since the resolution of this matter in June last year.  There is 531 days
pre-sentence detention.  None of this delay can be attributed to you or those acting for you.  In my opinion, you are entitled to a reduction in sentence on that account alone.  Whilst in custody you have used your time well, undertaking various courses.  I admitted into evidence certificates indicating the courses you have successfully completed.  That is also in your favour and I have taken that evidence into account.

15The fact you have been in protective custody is also a matter that I take into account.  It is also highly likely you will remain in protective custody for the remainder of your sentence.  That means your time in prison will be more onerous than for other prisoners and you will not have available to you some of the same privileges and freedoms within prison that other prisoners have and expect.  I have taken this factor into account.

16Despite the fact you did not plead guilty at the earliest opportunity, I do treat you as having pleaded guilty at a relatively early stage.  As I said earlier, you are entitled to a reduction in sentence because of your pleas of guilty and this will be reflected in the sentences that I will shortly pass.

17In addition you have, by your pleas of guilty I think, recognised that what you did was wrong and I infer from your guilty pleas that you now have proper insight into your offending and you are remorseful.  I note these are matters properly conceded by the prosecution in the summary.

18Your counsel, Ms Morgan, prepared a helpful outline of submissions in writing, which was made available before the plea in mitigation commenced.  I draw upon that document for salient matters relevant to your background.

19You are now 26, and as I have said, you are Sudanese.  You speak no or very little English and the plea proceeded with the aid of an interpreter.  This is another reason why you will find time in prison difficult.  You have no prior convictions.  As a child you were subjected to atrocities of civil war in your home country and your family brought you to Australia.  I am encouraged that despite this offending and your incarceration, you have the ongoing support of your family.

20I received into evidence two psychological reports from David Ball, Exhibit 3 and Elizabeth Warren, Exhibit 4.  Mr Ball carried out some psychological testing.  He thought you suffer from what he described as a “raft of schizoid personality features” and that you suffer from post-traumatic stress disorder, PTSD, from being exposed as a child to the dreadful consequences of civil war in the Sudan.  He analysed various risk factors and thought that you are a moderate risk of re-offending.  One factor affecting risk of re-offending is what he regarded as your lack of insight.  However, there are other factors that may act to reduce your risk of re-offending. 

21The first is whether or not you can have supervised counselling in the form of the Sex Offender's Program.  The second is that despite any sentence that
I might impose, is likely you will be sanctioned within the Sudanese community, where this kind of offending is taboo, as it is in any civilised society.  In my sentence, I am providing a timeframe where you will be released on a Community Corrections Order for a period of four years, after you are released from prison.  As well as supervision, there will be a condition that you undergo the Sex Offender's Program.

22I accept the submissions made by Ms Morgan, at paragraph 21 of her outline, that in your case, there are factors at work that influence the kind of sentencing disposition that I must impose.  I have also taken into account the opinion of Ms Warren.

23Your counsel conceded the seriousness of your offending, but having regard to all of the circumstances, she asked me to impose a term of imprisonment, taking into account your time served and to make a Community Corrections Order with conditions.  Ms Smith submitted the offending was serious and called for immediate imprisonment.

24I turn to some principles to be applied by sentencing courts when dealing with crimes of this kind. 

25General Deterrence: Appellate courts in all jurisdictions in this country have repeatedly said that crimes against children and young persons are to be regarded as abhorrent and the courts have a duty to the victims and to the community generally to protect such persons from people such as yourself who might be minded to take advantage of them for personal sexual gratification.   Experience of the courts has shown that where such offences are committed, the effects upon the victims can be both profound and lasting. 

26I admitted into evidence a victim impact statement from the victim.  The affects upon her, as a result of your offending, are there to be seen and sadly they are likely to remain with her for a very long time.  Your offending here was a serious example of what are serious offences. 

27Accordingly, any sentence I impose on you must send a clear message to those in the community who might be of the inclination to offend against children as you have, that if they do so and are detected, the punishment from the court will be stern.  In cases such as this, application of the principle of general deterrence is a very important factor in sentencing. 

28Specific deterrence must remain an important objective in sentencing you.    The sentence I impose must, so far as is possible, serve to deter you from further sexual offending. 

29Rehabilitation:  I think your prospects for full rehabilitation are reasonable, provided you have appropriate counselling and treatment for your PTSD and you achieve full insight into your offending, after having completed the Sex Offender's Program. 

30The sentence imposed must appropriately denounce your conduct and must reflect just punishment.  In passing sentence, I must also have regard to current sentencing practices.  I have done so.

31On Charge 1, you are convicted and sentenced to a term of imprisonment of two years.

32On Charge 2, you are convicted and sentenced to a term of imprisonment of two years.

33In addition, on each of the charges, I make a Community Corrections Order, with conviction, for a period of four years, to commence on the date of your release from prison.  There will be conditions that you undergo supervision for the term of the order and a mental health assessment and treatment, and undergo relevant offending behaviour programs as directed, especially the Sex Offender's Program.  There will be no condition requiring you to perform unpaid community work.  In my view the two years' imprisonment in protective custody is just punishment enough.

34I note that there has been 531 days pre-sentence detention under the sentences passed this day, and I direct that 531 days be reckoned as having been already served under the sentences passed this day and deducted administratively.

35For the purposes of s.6AAA of the Act, I state that had it not been for your pleas of guilty to the charges, I would have imposed a total effective sentence of six years, and I would have ordered that you serve a minimum of four years imprisonment before being eligible for release on parole.

36The crime of sexual penetration of a child under 16 years is a Class 1 offence, pursuant to Schedule 1 of the Sex Offenders Registration Act 2004.  Pursuant to the application of ss.6 and 34 of that Act, you are a registerable offender within the meaning of that Act, with reporting obligations for life.  I strongly advise you to take advice in prison as to your obligations under the Sex Offenders Registration Act. You will have to comply with the reporting obligations upon your release and for the remainder of your life.   

37The prosecution seeks the making of a forensic sample order under s.464ZF of the Crimes Act. The application was not opposed and I have made the order for the reasons stated in it. Having made the order, a member of the police force may use reasonable force to take a sample from your body, which in this case, is a swab from your mouth.

38Are there any matters arising out of that?

39MS MORGAN:  Your Honour, I have 530 days, not including today. 

40MS SMITH:  That accords with my calculations, Your Honour.

41HIS HONOUR:  Yes, well I have probably included today.

42MS SMITH:  Today. 

43HIS HONOUR:  Does it matter? 

44MS MORGAN:  No, Your Honour, as long as it's clear.

45HIS HONOUR:  Yes.  Well that has been entered into the court system and
I think it will be clear to the authorities.

46MS MORGAN:  Yes, Your Honour.

47HIS HONOUR:  No other matters arising out of that?

48COUNSEL:  No, Your Honour.

49HIS HONOUR:  Very well.  Now, MK, the effect of the orders that I have made is that you will be returned to prison and you will have to serve two years.  Do you understand?  You have already served 531 days of that.  So you will be returned to prison for - my arithmetic's not so good this morning, but about another four or five months - maybe four months, I think.  And then you will be released.  When you are released, you will have to comply with the terms and conditions of the community corrections order, which I have made.

50Now, you must comply with all of the terms and conditions of that order.  And you must not re-offend in any way for a period of four years after your released from prison.  If you do commit another offence whilst the community corrections order is in place, you will be brought back and dealt with by me.  Do you understand that? 

51Very well.  Well now it is necessary to have you sign the community corrections order.  Ms Morgan, would you assist with that please?

52MS MORGAN:  Yes, Your Honour.  I will just put on transcript that there are a number of conditions here and I will have the interpreter translate those.

53HIS HONOUR:  Yes, thank you.    

54MS MORGAN:  Your Honour, there is also the acknowledgment form in relation to the Sex Offender's Registration Act. 

55HIS HONOUR:  Yes.

56MS MORGAN:  I will need to take my client through this with the interpreter,  perhaps in the cells.

57HIS HONOUR:  Yes.

58MS MORGAN:  So if that could be returned to the court once that's been done.

59HIS HONOUR:  Yes, certainly.  

60MS SMITH:  No objection, Your Honour.  Just in relation to the estimate of time remaining, it's six and a half months is the time remaining.

61HIS HONOUR:  Thank you.

62MS SMITH:  One hundred and ninety-nine days from today. 

63HIS HONOUR:  It is about six and a half months further that you will have to serve in prison, MK, to serve out the two years.  Now do you have any questions at all about the community corrections order, having had it explained to you by the interpreter? 

64OFFENDER:  No questions.

65HIS HONOUR:  Very well.  10.30.

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