Director of Public Prosecutions v Kerr (a pseudonym)
[2024] VCC 283
•14 March 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JORDAN KERR (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE LYON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 November 2023 |
DATE OF SENTENCE: | 14 March 2024 |
CASE MAY BE CITED AS: | DPP v Kerr (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2024] VCC 283 |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords:
Legislation Cited: Sex Offender Registration Act 2004 (Vic)
Cases Cited:Bugmy v The Queen [2013] HCA 37; DPP v Herrmann [2021] VSCA 160; Worboyes v The Queen [2021] VSCA 169
Sentence:18 months Community Corrections Order with a Justice Plan
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Dr J. Harkess | Office of Public Prosecutions |
For the Accused | Mr M. Sturges | Wilkinson Lawyers |
HIS HONOUR:
1Jordan Kerr,[1] you have pleaded guilty to a charge of sexual assault of a child under the age of 16, which carries a maximum period of imprisonment of 10 years. It is also a Class 2 offence pursuant to the Sex Offender Registration Act,[2] but the prosecution is not making any application for registration and I will not make any order for registration.
[1] A Pseudonym.
[2]2004 (Vic).
2You do not have a relevant prior history.
Circumstances of Offending
3The summary of your offending was tendered in the Crown opening marked as Exhibit A, but a summary of your offending is as follows:
4On the night of 15 March 2021, the victim; along with your ex-partner and one of your friends were at your house. You had met the victim online sometime earlier in and around February 2021. You told the victim over Facebook Messenger that she was 'cute' and that you were 17 years old. The victim told you that she was 14, she stated that you told her, 'I don’t really care about your age'.
5You first met up with the victim at Southern Cross Station a few weeks after the communication, and you kissed her, and that is an uncharged act.
6On 15 March 2021, the victim was staying the night at your house. After your ex-partner and your other friend went to the loungeroom to sleep, you and the victim went to your bedroom. You asked the victim if she wanted to have sex with you and she said, 'Yeah'. You got in bed with the victim and put your penis against her vagina but did not penetrate her (Charge 1 – Sexual assault of a child under 16). You both then went to sleep.
7The following morning you left to go to work and the victim left your house with your friend. Your ex-partner stayed at your house as she was planning on staying there again that night.
8On 17 March 2021, the victim met your ex-partner and you at the Southern Cross Station. Your ex-partner told the victim that you two had sex the previous night. The victim became angry and smashed her phone. You all then went to Moonee Ponds. You and the victim got into an argument and she stabbed you. The police were called and the victim was arrested and conveyed to the Moonee Ponds police station where she participated in a record of interview.
9The victim disclosed your relationship to investigators at the end of her record of interview. Fawkner SOCIT was then notified of the victim’s disclosure. On 20 May 2021 you were arrested and participated in a 'no comment' record of interview.
Objective Gravity and Moral Culpability
10I now turn to a consideration of the objective gravity of your offending and an assessment of your moral culpability.
11The offence of sexual assault of a child under the age of 16 is an inherently serious offence. Furthermore, you were aware of the victim's age and clearly did not care about the fact that she was only 14 years of age.
12However, against this I must balance the fact that you, yourself, were only
17 years of age and were classified by the law as a child, that when the offence was committed the age gap between you and the victim was only three years, that there was no violence, or threats of violence involved in the commission of the act, that you had no relevant prior history, and considerations of the nature considered in Bugmy[3] and the subsequent case of Herrmann[4] in the Victorian Court of Appeal will affect the sentencing consideration.[3]Bugmy v The Queen [2013] HCA 37.
[4]DPP v Herrmann [2021] VSCA 160.
13I also take into account in assessing the objective gravity and your moral culpability that there has been some delay between the commission of the offence and the laying of the original charges, that is there was a delay of some 16 months, and the whole thing is now three years old.
14I further take into account that the offending was short in duration and a single incident, and that it was not an act that was carried out in the presence of others, it was not an act which could be labelled as either degrading or humiliating. As I say, I will return to the issue of your young age, your cognitive condition and the effect on your moral culpability later in these sentencing remarks.
Personal Circumstances
15You are now 20 years old and the youngest of three children.
16Your parents separated when you were between three and four years old. You remained in the care of your father after the separation. You state that your father would not allow you to live with your mother and you suffered separation anxiety as a result.
17Your mother remarried when you were still young. You told Associate Professor Brewer that your stepfather treats you, your mother and your siblings well.
18You recall that growing up, you were subjected to physical violence by your birth father while in his care. This culminated in involvement from Child Protection Services who attempted to remove you from your father's.
19You completed your primary schooling at a local primary school, you were not required to repeat any grades but leaned heavily on the support of teachers’ aides. You began high school at a local secondary. You transferred to a specialist school early during Year 7 after being deemed 'not socially ready' and you were expelled from your previous school. You then progressed through to completion of Year 10 although did not pass your grades.
20You report being bullied relentlessly through school as a whole and would often be sent home. Your father opines that this was for being loud and disruptive and that the school would make up excuses to send you home.
21Your father stated to Associate Professor Brewer that you had no 'decent mates', were easily manipulated by your peers and had trouble making friends more generally as people would find you 'irritating'. Your mother clarified that the physical violence with your father referred to above occurred in the context of you 'associating with undesirable types'. That was the quote from your mother.
22You began using cannabis at age 14 and alcohol at age 16. This coincides with the first instances of your involvement with police for a number of matters. At age 18, this evolved into methamphetamine use.
23Your counsel stated on the original plea you have undertaken some employment since leaving school, working in landscaping, and installing timber flooring over a two year period. This was your longest period of employment. As I understand you are currently supported by youth allowance and reside in youth justice accommodation in the CBD.
24You have a daughter, who turned three in October 2023. She resides with her mother whom you no longer have a relationship with. You were previously together for 18 months and this was your longest relationship.
25You visit your daughter regularly but are currently subject to attention from Child Protection concerning her welfare, as you and the mother of your child were violent towards each other throughout the course of your relationship.
26I have received letters of support from Lachlan Reyment of the Youth Support and Advocacy Service and peer support worker Danny Corsetti of Hard Cuddles. I will say more of them after, but both speak to the fact that since engaging with them you have made significant emotional and psychological progress, are learning to develop drug and alcohol harm minimisation strategies and are now avoiding negative coping mechanisms. Both have voiced support for you going forward and it is clear you will have a network of support as long as you continue to engage in these services.
Sentencing Submissions
27Mr Sturges, who appeared on your behalf at the plea hearing, submitted that the following factors should operate to mitigate your sentence:
(a) Your plea of guilty has utilitarian benefit, it was entered at an early stage resulting from negotiations and the complainant was spared from giving evidence;
(b) Your plea was entered in an environment where the court was still recovering from the COVID-19 backlog such that Worboyes[5] principles have application;
(c) Extra curial punishment, you were stabbed by the complainant two days after the offending;
(d) You were only 17 years old at the time of the offending, that is you were a child in the eyes of the law, but because of the delay in the proceedings through no fault of your own means you are now to be sentenced as an adult. You are certainly still a young offender and I will be taking that into account;
(e) The plea Mr Sturges submitted, is indicative of remorse for the offending;
(f) You are to be sentenced as a young offender of prior good character;
(g) You have been diagnosed with an intellectual disability, your moral culpability is lowered as your disability reduces your ability to exercise appropriate judgment;
(h) The supports available to you through the NDIS enhance your prospects of rehabilitation; and
(i) The application of the general Bugmy principles. Whether they apply directly or generally through the principles enunciated in the Court of Appeal case of Herrmann, you will still get the benefit of the overarching principles.
[5]Worboyes v The Queen [2021] VSCA 169.
28Dr Harkess who appeared for the Crown submitted that a Community Corrections Order is appropriate and open to the Court, and the Crown conceded that there was delay in the charges being laid, that the general Bugmy principles were available and should be applied to mitigate your sentence, and that in sentencing I ought take into account your intellectual disability.
Analysis
29The plea made on your behalf was supported by a wealth of material. I received the report of Associate Professor Warwick Brewer dated 29 July 2022. He assessed you as having a full-scale IQ between 70-79 (borderline range), premorbid IQ of 70. Associate Professor Brewer assessed your reading age as equivalent to that of a seven year old child, and considered you suffered from mild symptoms of depression.
30Professor Brewer said your functional Assessment placed you in the 'extremely low' to 'low' ranges, and your functional disability affected you across a range of domains of daily living. As such I also received the statement of disability. Professor Brewer did note a cluster of features detailed here present the emergence of concerning risk factors, particularly now that there are recent signs of sexualisation in your underlying dysfunctional behavioural scripts.
31Professor Brewer strongly recommended that the raft of resources implicit across the referrals to multiple agencies and workers are channelled into supporting one key therapeutic attachment at a more intense level weekly. It was his opinion that you should be eligible for NDIS resourcing, which has occurred, and that a single therapist would best be positioned to assist you in applying for the same.
32I received a supervised bail progress report Brooke Eales dated 4 May 2023, detailing your involvement with Youth Justice from 28 April 2022. Ms Eales noted that you attended 35 out of 38 scheduled appointments. Three appointments were rescheduled due to valid reasons. The report concludes that you engaged well and now have many support services to address your present needs and risk, including the coming on board of NDIS, funded workers, housing, independent living supports, AOD counselling and engagement in casual work.
33I received a letter from the JSS Next Steps report from Alexia Papadopoulos dated 31 July 2023, which outlined your participation in the early intervention program to address causes of both offending and homelessness run by Jesuit Social Services. You have resided in a private rental through Youth Justice Housing since 11 May 2023.
34I received a further letter from JSS Next Steps from Ms Wendy Peters dated 23 October 2023, which outlines a two year plan through the NDIS including, allied health therapists, employment support, support worker to assist with daily activities, transport allowance, level 2 support coordination through JSS.
35I received a letter from Bianca Dubois dated 23 October 2023 which outlines your participation in JSS and the youth justice housing program. Your rent is significantly reduced for a period of 24 months from 11 May 2023. You have positively engaged with staff and been actively involved in the transition into independently living including managing your property well.
36I received a letter from Lachlan Reyment dated 8 August 2023 from the Youth Support Advocacy Service who you started working with in late 2022. To the point of the letter you had attended 16 sessions with your AOD worker.
Mr Reyment outlines the exceptional hardships you have experienced, but that he is optimistic for your future due the actions you have taken to secure your financial, social, emotional wellbeing.37The letter from Danny Corsetti that I referred to earlier from Hard Cuddles dated 30 October 2023, Mr Corsetti is a forensic counsellor and peer worker, and he outlines that you have undertaken to further your emotional and psychological development. He notes that you have particularly focused on educating yourself on the gravity of family violence and its consequences. He is engaged in grief counselling with you and indicates that you are learning to confront difficult emotions and no longer resort to negative coping mechanisms, instead leaning on your newly built support networks.
38I received 15 pages of NDIS documents which outlined the total financial support provided to you through to12 April 2025.
39I received a further letter from JSS from Samantha Evers dated 25 July 2023, which states that you have been a participant of the Link Youth Justice Housing Program run through Jesuit Social Services since April/May.
Ms Evers notes you have positively engaged with staff and actively developed your independent living skills. You also attend weekly scheduled appointments with your after-hours support worker.40I also note the 18 conditions placed on the family reunification order of
10 March 2021, which outlines the conditions under which you can see your daughter. In the interim period I then also received a raft of documents. I received the report of Ms Falzon, who again I say I am very grateful that
Ms Falzon was able to rearrange her commitments to appear online today.41It is important that as your Disability Justice Coordinator on the Forensic Disability Program, Ms Falzon understands what is going on and what has been placed before me; and I make the invitation to Ms Falzon any documents that may be required can be passed on either by you, Ms Wilkinson, or by the court. Ms Falzon notes the neuropsychology report of Dr Brewer and your cognitive functioning, and notes your previous diagnosis of mild intellectual disability, and sets out that you have been engaged in regular counselling sessions over the previous 12 months with Danny Corsetti from Hard Cuddles, and the work done on regulating your emotions.
42Ms Falzon notes that you present as a well-mannered young man, you articulate well during conversations, but you struggle with academic tasks and lose interest, and therefore describing yourself as a hands on type of learner, the support counselling and programs put in place focus on that.
43She notes your moves towards independent living, your association with a local cricket club, the work that you have done on addressing drug and alcohol use, that you have regular supported work as a labourer, that you receive the disability support pension, and you participate in the NDIS.
44Ms Wilkinson, is Mr Kerr still getting married in early April?
45MS WILKINSON: No, Your Honour, that relationship has ended.
46HIS HONOUR: Hopefully you are making good progress on your own,
Mr Kerr, and living independently. I received also from Ms Falzon the justice plan that recommends that you engage with Disability Justice through DFFH, that you agree to engage in support treatment services identified by the Disability Justice Coordinator, that is Ms Falzon, that you engage with the forensic counsellor, David Corsetti, from Hard Cuddles, and if you cannot continue to engage with David Corsetti that you agree to engage with a psychologist with expertise to address your therapeutic needs.47I received the CCO assessment, which has been updated since the original assessment. The CCO assessment considers that you are assessed as a suitable candidate for a CCO, that the court's indication of a justice plan is noted, and that in addition to drug and alcohol treatment, offender reduction programs and supervision, that I should attach a justice plan.
48It is also recommended that the order be for a period of 18 months at least to enable completion of the programs. After reading the mental health assessment report and the CCO assessment, it is not recommended that I attach a mental health condition to the order.
49Mr Kerr, taking into account your plea of guilty, the considerable delay in the matter, the fact that the offending occurred when you were a child, that you were still a young offender and Worboyes, I also take into account your prospects for rehabilitation, which are assumed by your young age under the principles enunciated in Azzopardi, I assess your prospects of rehabilitation to be fair to reasonably good.
50It is apparent that you have been working pretty hard on a number of social skills over the last number of years. You are going to have to keep working hard during the currency of the order. What I am going to do is I am going to run through a number of conditions, and I am going to ask you if you understand the conditions and if you agree to me making the order.
51The first thing I have to tell you is that you have been assessed as a medium risk of reoffending, so not a low risk, not a high risk, but in the middle. That is the first thing, so you have got to work hard to make sure that you do not fall back into drugs and alcohol or committing criminal offences. You understand that?
52OFFENDER: Yes.
53HIS HONOUR: If you do commit a further offence during the time of the CCO then you come back before me for re-sentencing and you could face a period of either YTC or gaol. Do you understand that?
54OFFENDER: Yes.
55HIS HONOUR: You can also breach the order by not complying with the conditions that I am about to set out for you, so you understand that is another way you can breach the order and that would bring you back before me. There is a whole lot of conditions that attach to every CCO and I have got to read them to you, and I have just got to make sure that you understand them.
56The first is that you must not commit either in Victoria or outside Victoria any criminal offence for which you could receive a term of imprisonment. Do you understand that?
57OFFENDER: Yes.
58HIS HONOUR: No criminal offending. Second, if Corrections impose an obligation or a requirement or they say you have got to do something then you have to do it.
59OFFENDER: Yes.
60HIS HONOUR: You have to report to and receive visits from the Office of Corrections, so if they say to you you have got to go there, you have got to go there, and if they say, 'We are going to come to your home', they can come to your home. Do you understand that?
61OFFENDER: Yes.
62HIS HONOUR: Next you have to report to the Community Corrections Centre at 2A Barries Road, Melton, within two clear days of me making this order, so you have got to report either as a matter of safety today or tomorrow. Do you understand that?
63OFFENDER: Yes.
64HIS HONOUR: Ms Wilkinson, can I just get Ms Falzon back online?
65MS FALZON: Yes, Your Honour.
66HIS HONOUR: Mr Kerr has to report to the Office of Corrections within two clear working days of me making the order today. Will there be a worker that can help coordinate that or is that best done by Ms Wilkinson, his solicitor?
67MS FALZON: That is probably best done by Ms Wilkinson. We normally with our process the Corrections case manager - we normally don't get privy to who the actual case manager is until the person actually introduces to Corrections, but I can send an email today.
68HIS HONOUR: You can send an email, but Ms Wilkinson ‑ ‑ ‑
69MS WILKINSON: I will coordinate that, Your Honour. He has assistance with transport today so I will arrange to have him taken straight down today.
70HIS HONOUR: Very good, thanks, Ms Wilkson. You heard what
Ms Wilkinson had to say. The next condition is that if you move out of where you are living or if you change your job, you have to tell Corrections within two days.71OFFENDER: Yes.
72HIS HONOUR: You cannot leave Victoria without permission of Corrections, so if you decide you want a little trip interstate you have got to tell them.
73OFFENDER: Yes.
74HIS HONOUR: You have to comply with any directions that Corrections give you and they can give you directions either orally, that is telling you, or in writing. Do you follow that?
75OFFENDER: Yes.
76HIS HONOUR: They are the general conditions. I will now tell you about the special conditions that I intend to impose. Before I do that I am going to say that even though I am imposing these conditions you are not going to find any great change between what is going to be imposed and how you are going about your life anyway.
77I propose that you undergo treatment and counselling to address both drug and alcohol issues. Do you understand that?
78OFFENDER: Yes.
79HIS HONOUR: I propose that you undertake programs that might be recommended by Corrections that may address the reasons why you might commit offences, so they are called offender reduction programs. Do you understand that?
80OFFENDER: Yes.
81HIS HONOUR: I propose to attach as a condition of the CCO the justice plan and that means that you have to comply with conditions under the justice plan. Do you understand that?
82OFFENDER: Yes.
83HIS HONOUR: That is Ms Falzon. I propose that you be under supervision for the life of the order and the life of the order - I am going to make the order run for 18 months. Do you understand that?
84OFFENDER: Yes.
85HIS HONOUR: This is the question I have got to ask you. Given that you have said that you understand all of the conditions and that you understand that if you come back before me if you breach the order I am going to ask you if you consent to - that is agree to going on the order.
86Before you answer that, Ms Wilkinson, I am going to leave the Bench for a moment and I am going to give you an opportunity to speak to Mr Kerr so you can tell me that you are satisfied that he understands.
87MS WILKINSON: Thank you, Your Honour.
88(Short adjournment.)
89HIS HONOUR: Thank you, Ms Wilkinson.
90MS WILKINSON: Thank you for that time, Your Honour. I am confident that he understands and also consents to Your Honour's order.
91HIS HONOUR: The order will be made, given the nature of the offending being a sexual assault, notwithstanding Mr Kerr is a young man, I intend to make the order with conviction. The order will be made on the charge of sexual assault, you are convicted and placed on a community corrections order for a period of 18 months, with special conditions that you attend for assessment and treatment for drug issues, alcohol issues, the offender reduction programs, supervision and the justice plan.
92Any other issues from your perspectives, starting with you, Ms Paganis?
93MS PAGANIS: No, Your Honour.
94HIS HONOUR: Thank you for your attendance today. Ms Wilkinson?
95MS WILKINSON: Nothing from me, Your Honour.
96HIS HONOUR: The 6AAA in this case is almost impossible to make, but for the plea of guilty in this case, all things being equal, I would have imposed a sentence of three months YTC. Thanks for your attendance. We will adjourn now.
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