Director of Public Prosecutions v Khan Hartley Tori
[2023] VCC 1696
•18 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00424
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ELI KHAN HARTLEY TORI |
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JUDGE: | HER HONOUR JUDGE HARPER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 August 2023 | |
DATE OF SENTENCE: | 18 September 2023 | |
CASE MAY BE CITED AS: | DPP v KHAN HARTLEY TORI | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1696 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sexual assault of a child under 16; offender 18 years old, victim 5 years of age
Legislation Cited: Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:Worboyes v R [2021] VSCA 169; Azzopardi v R (2011)VSCA 372
Sentence: 4 years 2 months, NPP 2 years 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Guesdon | Office of Public Prosecutions |
| For the Offender | Ms H. Lyons | Adrian Paull Criminal Lawyers |
HER HONOUR:
1Eli Khan Hartley Tori, you have pleaded guilty to two charges of sexual assault of a child under 16. The maximum penalty for each of these offences is 10 years' imprisonment. There is a standard sentence of four years for each charge.
2You come before the court of prior good character and have no previous convictions.
Circumstances of the offending
3The circumstances of your offending were fully outlined in Exhibit A, the summary of prosecution opening, dated 27 July 2023. I will summarise those facts here.
4The complainant in this matter is Sara Morris[1] (a pseudonym), who at the time of the offending was five years of age.
[1] A pseudonym.
5You were friends with Sara’s mother, Amy Saunders,[2] (a pseudonym) and stepfather, Andrew Ferguson,[3] (a pseudonym) since 2016 when you met them through an online gaming platform.
[2] A pseudonym.
[3] A pseudonym.
6You moved to Melbourne for a fresh start and Ms Saunders kindly allowed you to reside with her, her partner and her young child, your victim, at her apartment in Fitzroy between 28 March 2019 and 9 April 2019.
7You would sleep on a sofa in the living room in that apartment.
8It has been submitted that you and Sara did not get along and indeed Ms Saunders observed an argument between you both in the living room on one occasion where you both were yelling.
9The offending occurred on 9 April 2019.
10On this day Ms Saunders and Mr Ferguson left you to watch Sara whilst they went shopping after 11 am.
11This was the first occasion they had left you alone with Sara but because you were their friend they trusted you to take care of her.
12Once they had left the house you watched a film, the Big Friendly Giant, with Sara, on the couch.
13It is while you were on the couch that you decided to tickle Sara and touch her in areas of her body that she described as 'bits,' 'fanny' and 'privates.'
14You then put your hand down her underpants. You touched her vagina with your fingers. This is the basis of Charge 1. She recalls this experience was unpleasant and she felt ticklish.
15You then proceeded to lick her vagina with your tongue. This is the basis of Charge 2. She recalls that this felt 'very, very slimy' and she felt both sad and angry about your conduct towards her.
16You then exposed your penis and masturbated in front of her. She describes this as 'rubbing' and 'squishing' which I note is an uncharged act.
17Ms Saunders and Mr Ferguson arrived back at the apartment at around 1:30 pm and found you sitting on the couch watching a film with Sara. Ms Saunders showed you and Sara what she had bought at the shops.
18You then played Xbox with Mr Ferguson while Ms Saunders sat down with her daughter in the living room.
19Sara then laughed and told her mother 'Eli touched my fanny.' She said this comment in your presence which you denied and said, 'that's disgusting.'
20Ms Saunders was understandably very concerned and took Sara to a nearby bedroom and asked her more about the accusation she had just made about you. Sara told her mother that, 'when I was watching the BFG, Eli touched my privates. He tickled me'. Ms Saunders further questioned Sara about your conduct to which she said that you had touched the middle of her privates and tickled it.
21Ms Saunders then instructed Sara to lift up her dress and show her where you had touched her. When she lifted her dress, she pointed to her vagina and told her mother 'that's where it tickled.'
22As she showed her mother Sara cried and Ms Saunders observed redness on her child's labia.
23Shortly after this occurred, Mr Ferguson went into the bedroom and Ms Saunders told him what Sara had said.
24At 3:18 pm, the same day, Ms Saunders, Mr Ferguson and Sara took an Uber to a local GP for physical assessment.
25Whilst in the Uber, Ms Saunders called your mother and told her about the allegation. She told your mother that you were no longer welcome in their home and asked her to make alternative accommodation arrangements for you.
26Whilst Ms Saunders spoke with your mother, Sara then told Mr Ferguson that you had touched your penis in front of her. She then gestured a hand motion consistent with male masturbation which was observed by both Mr Ferguson and Ms Saunders.
27In the waiting room of the local GP, Sara told Ms Saunders and Mr Ferguson that you had also licked her vagina. These actions, she told her mother, made her feel sad and angry.
28After being assessed by a doctor at the local GP, the family was redirected to the Royal Children’s Hospital. There Sara was forensically examined by medical professionals.
29The underwear which she wore at the time of the offence was given to police by doctors at the Royal Children’s Hospital after they had conducted their forensic examinations. Police were also given specimens obtained during the examination taken of her vagina and vulva.
30Initial DNA comparison with your singlet showed very strong support for the assertion that your DNA was found on the inside gusset of Sara’s underpants. A further DNA sample provided by you resulted in the same conclusion.
Records of interview
31On 9 April 2019 at 10:25 pm, you were arrested by police at Melbourne Airport while you were awaiting a flight back to Queensland where your family reside.
32You were then taken to a police station and participated in a taped record of interview during which you told police:
· The accusation was shocking and mentally draining for you to accept.
· You tickled Sara over her dress, above her waist, between her waist and her chest.
· You never touched or licked her vagina or showed her your penis.
33You returned to Queensland and were extradited to Victoria on 15 December 2022. You were again interviewed by police and told investigators
· You did not recall the victim or her parents' names now.
· You believed the allegation was a fabrication from the mother and stepfather.
· It is disgusting as it is a horrible act to do with a child, and
· You had no physical interaction with the victim at all.
Gravity of the offending
34The offences to which you have pleaded are both serious, Charge 2 even more so than Charge 1, aggravated in each case by the fact that your victim was a five year old child. Ms. Guesdon, for the prosecution, submitted that your offending falls in the mid-range. Your counsel, Mr. Barriero, submitted that the offending fell towards the mid to upper end of seriousness. I agree.
35I note there was no physical coercion, the offences occurred as part of a single incident, and while there was a breach of trust you were a babysitter and not a family member. Your victim was, nevertheless, in your care and you gravely breached that position of responsibility.
Victim Impact Statement
36I have received, and had read aloud in court, the victim impact statement of Ms Saunders. It bespeaks the ongoing effect of your offending on both her and her daughter, whose lives have been forever changed by your actions.
37Ms Saunders describes her devastation and ongoing inability to trust others around, or with the care of, her child. She is wracked with guilt and has watched her daughter change from a happy and confident child to one who lashes out in anger, is anxious and has reverted to bed-wetting.
Moral culpability
38Your offending is inexplicable, and I find your moral culpability to be high. While you purport to have experienced a blank or 'zombified' state at the time of the offending, you well knew the age of your victim and you were charged with her care at the time you sexually assaulted her.
Plea of guilty
39You entered pleas of guilty to the charges on the indictment after the initial directions hearing in this court. Both parties submitted this was a relatively early plea and has significant utilitarian benefit in the circumstances. You have saved the community the time and expense of running a trial and spared your young victim and her parents the ordeal of giving evidence. As such, you have facilitated the administration of justice and you are entitled to a benefit for that.
40The utilitarian benefit of your plea is enhanced by the fact that the Worboyes v R [2021] VSCA 169 considerations are engaged. This results in a more pronounced amelioration of sentence than at other times.
41I note the plea was made in circumstances where your victim’s VARE was difficult to follow, and being only five years of age, she had difficulty articulating what had happened to her. The DNA, of course, strengthened the prosecution case and the matter resolved upon receipt of the second analysis.
Remorse
42You denied the offending in your first record of interview in early April 2019 and again in the second interview in mid-December 2022. You did, however, enter a plea in June 2023 and ceased your denials by the time of your psychological assessment. Your explanation of 'zoning out' does not sit well, however, I accept there is some degree of genuine remorse in your plea and in your discussions with Ms. Bovenkerk. I will moderate the sentence accordingly.
Personal circumstances
43I turn now to your personal circumstances.
44You were 18 at the time of the offending and are now 23, having been born in May 2000 in Logan, Queensland.
45You struggled at school because of your appearance and complexion, being from an Indian background. You were repeatedly bullied and assaulted and were diagnosed with ADHD in your early teens. You experienced panic attacks and self-medicated with cannabis and alcohol.
46Your family relocated to Hervey Bay and you moved to a flexible learning school at which you completed Years 11 and 12.
47You reported an enduring good relationship with your mother and a reasonable relationship with your father until your teenage years. I note you are now supported by both parents. At the age of 15 you began to run away from home and experienced periods of homelessness.
48Prior to moving to Melbourne, you lived with a friend in Queensland who unduly pressured you to get a job. You have never been employed.
49Your background and ongoing difficulties were outlined in a character reference I received from you mother, marked as Exhibit 3.
50On 28 March 2019 you moved to Melbourne to stay with a friend with whom you had developed an online gaming friendship. You moved in with her, her partner and her five-year-old child, as I have said, in a two-bedroom flat in Fitzroy. You slept on the couch and would stay up late playing video games and sleep during the day. You had little tolerance for the child, who would become your victim, and would argue with her on occasion.
51After the offending you returned to Queensland. You left a note for your parents at their home and left as you did not feel able to front them in light of the allegations.
52You soon formed a relationship with a woman called Taylor. She fell pregnant and you became a father for the first time. The relationship ended after some two years. Your daughter now lives with your mother and Child Safety Services are involved.
53You entered another relationship soon after that with a woman called Hayley. She too became pregnant. She gave birth to a daughter with whom you have little to no contact.
54You are currently in a relationship with a woman called Maddison. You have a son, your third child, who was born while you were in custody. You have not met him. He and Maddison now reside with your mother.
55I received a psychological report from Ms. Marlese Bovenkerk dated 22 August 2023 which was marked Exhibit 2 on the plea.
56You expressed to Ms. Bovenkerk that you had a poor recall of the offending and it occurred during a 'blank space moment of ASD', that you entered a 'zombified state of mind.' While you expressed a belief that you have Autism Spectrum Disorder, I note that Ms. Bovenkerk’s findings do not support this. I accept, however, that you do have Attention Deficit Hyperactivity Disorder, a major depressive disorder in partial remission, and both alcohol and cannabis use disorders.
57A Risk for Sexual Violence Protocol (RSVP) assessment found you to be at moderate risk of sexual recidivism, comparable to the average sex offender. While you have limited insight into your offending and have expressed such beliefs as 'I’m my own alcohol and other drug counsellor', you nevertheless demonstrated positive attitudes towards intervention to Ms. Bovenkerk.
58With the appropriate treatment and supports, given your age, I consider your prospects of rehabilitation to be reasonable.
59While you say you have adapted to the prison environment, Ms. Bovenkerk opines that you have mental health issues which would make custody a greater burden on you than on a prisoner without those conditions. I take this into account.
Sentencing principles and factors
60Mr. Tori, in the words of your counsel, your offending was vile, graphic and inexplicable. You offended against a five-year-old child in circumstances where you were entrusted with her care for only a short time. You took that opportunity to touch and lick her vagina. While she may not have appreciated the true nature of what you did to her, even at the age of five she was able to express that your acts made her sad and angry and she knew to report the offending to her mother. You have damaged not only your victim but her mother too.
61Given that you were 18 years of age at the time of the offending, in line with Azzopardi v R (2011) VSCA 372, rehabilitation is to be given primacy in the sentencing exercise. It is in the interests of the community that you are given the supports necessary to achieve this. I note your parents and partner remain supportive of you.
62Unfortunately, this matter has experienced significant delay which I take into account. The offending occurred in 2019 and due to the need for forensic testing, extradition and Covid-19 travel delays, you are only now coming before the court and have had the matter hanging over you for some four years.
63You have, therefore, lost the opportunity to be sentenced to detention in a Youth Justice Centre and remain somewhat vulnerable in adult custody. The delay has also allowed you to demonstrate that you can go a sustained period without reoffending. It has thus been of some benefit to you and I take this positive reflection of your conduct into account.
64Just punishment and denunciation are relevant considerations, as are general and specific deterrence, although moderated. Sexual offending against children is all too common and others must be deterred from committing such offences. Further, community protection has relevance, and given your risk assessment, other children in the community must be protected from you on your release.
65Totality must also play a part in the sentencing exercise as the two offences are so closely related. This will be reflected in the sentence I impose.
66On 30 August 2023 I had you assessed for a community corrections order. As I emphasised at the plea, this was by no means a concluded view.
67During the assessment you expressed remorse for your offending and referenced your poor mental health and daily cannabis use at the time.
68You were also assessed by the Mental Health Advice and Response Service (MHARS). When assessed you engaged well and were found to have a mild mental health problem or difficulty.
69While both your counsel and the prosecutor submitted that a combination sentence would be within range, I do not agree. This is grave offending, perpetrated against a particularly young child, in circumstances where you were responsible for her care for a matter of only hours.
70General deterrence is particularly relevant however, it gives way to rehabilitation. I consider that specific deterrence is also relevant given your risk assessment, although your four years without reoffending bodes well for you.
71Community protection does loom large. You were looking after your victim for the first time, for a short period, when you took the opportunity to offend against her. Other children must be protected from you on your release.
72I note that both Charges 1 and 2, sexual assault of a child under 16, are standard sentence offences with a standard sentence of four years in each case. The standard sentence for an offence is a sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle range of seriousness. I must take the standard sentence into account as one of the factors relevant to sentencing. This requirement is to be treated as a legislative guidepost, having the same function as the maximum penalty. It does not affect the established instinctive synthesis to sentencing or require or permit two-stage sentencing.
73The court must only have regard to sentences imposed in cases where the standard sentence regime applies. I note there are few, if any, sentences with facts similar to those before me.
74I have taken the standard sentence for sexual assault of a child under 16 into account as one of the factors to consider in my instinctive synthesis of all the relevant factors in your case. I consider your offending to be at least at the mid-range of seriousness.
75Pursuant to s11A of the Sentencing Act 1991, the non-parole period I impose for a standard sentence offence must be at least 60 per cent of the total effective sentence.
Sex Offenders Registration Act
76You have committed two Class 2 offences, however, both charges occurred within a 24 hour period so are considered to be part of the same incident pursuant to s5 of the Sex Offenders Registration Act 2004.
77Having therefore committed 1 Class 2 offence, you are to be placed on the register for a period of eight years pursuant to s34(1)(a) of the Act.
78Mr Tori, please stand.
Disposition
79On Charge 1, you are sentenced to two years and six months' imprisonment.
80On Charge 2, you are sentenced to four years' imprisonment. This will be the base sentence.
81I order that two months of the sentence imposed on Charge 1 be served cumulatively on the sentence imposed on Charge 2.
82That makes a total effective sentence of four years two months' imprisonment.
83I order that you serve a minimum non-parole period of two years and six months before being eligible for release.
84I declare that 287 days, excluding today, have been served by way of pre-sentence detention pursuant to s18 of the Sentencing Act 1991.
85Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty I would have imposed a total effective sentence of five years and six months' imprisonment with a minimum of three years and five months to serve before being eligible for parole.
86You may be seated, Mr Tori.
87MS GUESDON: Your Honour, just in terms of pre-sentence detention, I have instead of 287, 278.
88HER HONOUR: My apologies. Ms Lyons.
89MS LYONS: I agree, Your Honour.
90HER HONOUR: I will declare 278 days pre-sentence detention. Mr Tori, you are now required to sign an acknowledgement that you are to be placed on the Sex Offenders Register, I will have that provided to you now. Thank you. Is there anything else from either party?
91MS GUESDON: No, Your Honour.
92MS LYONS: Nothing further, Your Honour.
93HER HONOUR: Mr Tori can be taken out the back please. We will adjourn the court until 10.30.
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