Director of Public Prosecutions v Kirk (a pseudonym)
[2022] VCC 744
•30 May 2022
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUCAS KIRK (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE CAHILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 February 2022 | |
DATE OF SENTENCE: | 30 May 2022 | |
CASE MAY BE CITED AS: | DPP v Kirk (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 744 | |
REASONS FOR SENTENCE
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Subject: Sexual penetration and sexual assault of child under 16
Catchwords: Guilty plea –19 year old offender - 15 year old victim –– no violence or threat - low level sexual offending – intellectual disability – Verdins principles applicable
Legislation Cited: Sex Offenders Registration Act 2014 (Vic); Sentence Act 1991 (Vic).
Cases Cited:Warboyes v The Queen [2021] VSCA 169; Director of Public Prosecutions v Codey Herrmann [2021] VSCA 160; Brown v The Queen [2020] VSCA 212; R v Biba [2021] VSC 327; Soo v The Queen [2014] VSCA 304; Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74; HAJ v The Queen [2021] VSCA 96; Carter (a pseudonym) v the Queen (2018) 272 A Crim R 170; Bryce Treloar v the Queen [2020] VSCA 4; Jay Cooke v the Queen [2021] VSCA 70; The Queen v Peter Brown [2018] VSC 742; Boulton v The Queen (2014) 46 VR 308.
Sentence: 2 year Community Correction Order with a Justice Plan and special conditions. Sex Offender Registration exemption order made.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | R Harper | Office of the Director of Public Prosecutions |
| For the Accused | J P Kretzenbacher | Farrelly Legal |
HIS HONOUR:
1Lucas Kirk,[1] you have pleaded guilty to:
(i)One charge of sexual penetration of a child under 16 (Charge 1);
(ii)One charge of sexual assault of a child under 16 (Charge 2).
[1] A pseudonym.
Circumstances of offending
2The circumstances of your offending are set out in the Summary of Prosecution Opening dated 29 April 2021.[2]
[2] Exhibit A.
3For the purposes of the plea, you accepted the facts set out in the Opening.
4In November 2018, you met Isla McMahon[3] at Church and started a relationship with her. You lived with your parents at Warrnambool. She lived in supported accommodation. She told you she was turning 16 the next month. You told her you were 17, nearly 18. In fact, you were 19.
[3] A pseudonym.
5On 27 November 2018, she came to your home and stayed overnight.
6Around 2 am, on 28 November 2018, while the two of you were kissing and hugging on your bed, you moved your hand towards her pants. When she said no, you moved them away and onto her breasts, outside her clothing, and then underneath. Touching her breast constitutes Charge 2, sexual assault of a child under the age of 16.
7The two of you then fell asleep.
8Later that morning she went home. You exchanged messages during the day. You invited her to back to your home. She accepted and arrived about 7:00am.
9You took her for a drive. You had learner plates on the car and an older friend sat in front seat with you. When you got home, Isla and you got into the spa with two of your friends. After they left, while the two of you were hugging, the shoulder tie to Isla’s bathers came undone. You pulled her bathers down and put your penis into her vagina. While you were having sex with her you withdrew your penis and wanted to put it in her anus but she refused so you put it back into her vagina. The two acts of sexual penetration constitutes charge 1, sexual penetration of a child under 16 years.
10After the two of you had sex, you got out of the spa and went to your bed where you kissed and hugged until you fell asleep.
11Police arrived at 4 am. They were looking for Isla who had failed to return to her accommodation.
12When they told her you were 19 she became upset because you had lied about your age. She denied any sexual activity had occurred because she didn’t want to get you into trouble.
13A few weeks later, when she found out you had been seeing another girl, she became very upset and, on 13 December 2018, made a complaint to police.
14On 26 June 2019, police arrested you. An independent person was present.
15You said Isla and you went to the same church. You said a friend, who had previously dated her, introduced you to her and you started seeing each other. You admitted you had had sex with her at your home, before police arrived. You said you used a condom for protection. You admitted you touched her breast on another occasion. You said you always ask before you touch someone. You gave a different account about the timing of the two events. There may have been some confusion on your part. You told police you attended a special school. You were aware Isla lived with carers. You described her as caring and said, ‘she wasn’t a bad girl’.[4] You said you knew she was 15 when you had sex with her. You said you told her initially you were 19 but later told her your “real age”.[5]
[4] Record of Interview, Q 56 and 58.
[5] Record of Interview, Q 201.
16Police let you go after the interview without charge.
17On 3 February 2020, they charged you with a number of sexual offences.
18The matter resolved, prior to the committal mention, on 20 October 2020.
Impact on the victim
19I read Isla’s victim impact statement[6].
[6] Exhibit B.
20She was a vulnerable girl who had a history of depression and anxiety. You told her you loved her and then used her knowing what you were doing was wrong. Your betrayal of her trust has damaged her self-esteem and made her depression and anxiety worse.
Criminal record
21You have no criminal record.
Personal Circumstances
22You were born in April 1999. You were 19 years old when you offended. You are now 22.
23You are the second youngest of five children. Your mother is a delivery driver and your father works at the Warrnambool Disability Employment Agency (WDEA).
24You have an intellectual disability.
25You grew up at Warrnambool and attended local schools. You struggled with reading, writing, spelling and numeracy. When you were 14 years old, you were functioning at Grade 1 or 2 level.[7] The next year you had an integration aide to help you.[8] You completed Years 11 and 12 at an alternative school for persons with a disability.
[7] Exhibit 7.
[8] Exhibit 6.
26In 2018, when you left school, through WDEA, you obtained work repairing televisions. You lost your position during 2020 because of the impact of COVID-19.
27Since, you have received a disability support pension.
28You live at home with your parents, one older brother and your younger sister.
29Carla Lechner, psychologist, interviewed you on 18 January 2020.[9]
[9] Exhibit 2.
30You presented as “cognitively, socially and emotionally immature” with “limited ability” to think through the logical consequences of your actions.[10]
[10] Exhibit 2, at page 3.
31You said you had problems with reading and writing at school. You said you kept out of trouble and denied any bullying.
32Ms Lechner spoke to your mother who confirmed you had learning difficulties at school. She also said you had been a victim of bullying. She described you as a “good worker” and, although you have had no further trouble, she has concerns about you “doing stupid stuff” because, when it is explained you can’t do something, you don’t “get it”.[11]
[11] Exhibit 2, at page 5.
33You told Ms Lechner Isla was your first sexual partner. You said, subsequently, you were in a long-term relationship with a 21-year-old woman who did not want to have sex with you. And you respected her wishes.
34Ms Lechner suspected you may have been “coy” about your limited sexual experience.
35To psychometric testing, you were assessed to have a mild intellectual disability.[12]
[12] Exhibit 2, at page 4.
36You did not show any symptoms of a psychosocial or psychosexual disorder.[13]
[13] Exhibit 2, at page 5.
37Ms Lechner attributed your offending to psycho-sexual immaturity and lack of understanding of the very serious implications of your actions, rather than any psychosexual deviance.[14]
[14] Exhibit 2, at pages 5 and 6.
38Simon Candlish, consultant psychologist, assessed you on 9 August 2021.
39You told him you had a happy home life. You said you are closest to your mother.
40You said you rarely consume alcohol and have never tried illicit drugs. You said you were not drinking when you had sex with Isla.
41You gave Mr Candlish “a limited and overly positive account of (your) personal history, with minimal references to any past issues or difficulties in (your) life.”[15]
[15] Exhibit 3, at [3].
42He attributed this to your cognitive issues and to a desire to make a positive impression.
43In a comprehensive assessment, taking into account:
·Isla was close to the age of 16 years and sexually developed,
·you appear to have sexual interest in girls of similar age to you, and
·you have not reoffended
Mr Candlish considered you are a low risk of sexual offending.[16]
[16] Exhibit 3, at [48], [57], [63] and Appendices 1, 2 & 3
44In his opinion, you may have been attracted to Isla because of less obvious differences in maturity and emotional and social skills between the two of you.[17]
[17] Exhibit 3, at [67]
45Because of your cognitive deficits, you appeared not to have considered the consequences and the harm of your actions.[18]
[18] Exhibit 3, at [67]
46You told him you have learned from your mistake because you could get “into a lot of trouble”.[19]
[19] Exhibit 3, at [36].
47In his opinion, your rehabilitation prospects, which he assessed as good, will be advanced through achievement of prosocial goals of family and work.[20]
[20] Exhibit 3, at [72].
48He recommends counselling to help you develop social and interpersonal skills and to manage your mood, and sex education to help you avoid contact with peers under the age of 16.[21]
[21] Exhibit 3, at [73].
Defence Submissions
49Your counsel, Ms Kretzenbacher, relied on the opinions of Carla Lechner[22] and Simon Candlish[23] in support of her comprehensive submissions[24]:
[22] Exhibit 2.
[23] Exhibit 3.
[24] Exhibit 1.
50She acknowledged the inherently serious nature of your offending and the harm you caused to Isla.
51She submitted, considering:
(a) there was no premeditation to your offending;
(b) it occurred over a short period;
(c) there was no violence, threat or inducement ;
(d) it occurred in the context of a boyfriend/girlfriend relationship where the age gap was only 4 years; and
(e) it stopped when police spoke to you,
your offending falls to the lower end of seriousness for offences of the type.
52In mitigation of penalty relied on:
(a) your early guilty plea, for its high utilitarian value,[25] and evidence of remorse;
(b) your otherwise good character;
(c) your relative youth and immaturity; and
(d) the delay of three years in prosecution.
[25] For its additional utilitarian value because of the type of case (Carter (a pseudonym) v the Queen (2018) 272 A Crim R 170, at [75], and during COVID-19 (Warboyes v the Queen [2021] VSCA 169, at [39]).
53She submitted, your intellectual disability, which inhibited your ability to understand the consequences of your actions:
(a) reduces your moral culpability;
(b) bears on the kind of sentence I should impose;
(c) moderates the need for general and specific deterrence; and
(d) would make prison more difficult for you than a person without your disability.
54She also submitted, because of your disability and relative youth, you would be vulnerable to the corruptive influences of incarceration.
55And she submitted, for the same reasons, your rehabilitation is the primary sentencing objective.
56She submitted, with family support and a good work history, only disrupted by the public health pandemic, you have demonstrated, by not reoffending will, your prospects of rehabilitation are good.
57In support of her ultimate submission that I do not imprison you but release you on a community correction order, with a justice plan tailored to promote your rehabilitation, she referred me to two appellate decisions, where community correction orders were imposed for the offence of sexual penetration of a child under 16, as comparative cases.[26]
[26] Bryce Treloar v the Queen [2020] VSCA 4 (‘Treloar’), Jay Cooke v the Queen [2021] VSCA 70 (‘Cooke’).
58She also made application for a registration exemption order on the grounds that you have been assessed as a low risk of sexual reoffending and you have not committed any further offences since.[27] She relied on the contents of an application[28] and a comprehensive affidavit in support.[29]
[27] Sex Offenders Registration Act2004 (Vic), s 11A.
[28] Exhibit 4.
[29] Exhibit 5.
Prosecution submissions
59Ms Harper, who appeared for the prosecution, submitted Parliament’s clear intention is a term of imprisonment should be imposed for the crimes you committed.
60She did not challenge the opinions of Ms Lechner or Mr Candlish and accepted, because of your intellectual disability, limbs 1 to 5 of Verdins principles are applicable to your case.
61She also acknowledged your guilty plea was made at the earliest opportunity.
62Those moderating factors notwithstanding, she submitted the seriousness of your crimes warranted the imposition of a term of imprisonment.
Consideration
63The maximum penalty for the offence of sexual penetration of a child under 16 is 15 years imprisonment.
64The maximum penalty for the offence of sexual assault of a child under 16 is 10 years imprisonment.
65For the sexual penetration offence, the law prescribes a standard sentence of 6 years’ imprisonment.
66For the sexual assault offence, the law prescribes a standard sentence of 4 years imprisonment.
67The standard sentence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness[30].
[30] Sentencing Act 1991 (Vic), s 5A(1)(b).
68It is a legislative guidepost but does not alter the well-established instinctive synthesis approach to sentencing.[31] It does not take into account matters personal to the offender.
[31] The Queen v Peter Brown [2018] VSC 742, at [58] – [59].
69Although Isla was nearly 16, you knew she was not yet 16;and you were nearly 4 years older.
70You deceived her about your age and violated her trust.
71While you did not use any force or make any threat, her willingness to engage in sexual activity does not excuse your behaviour.
72Under the law, a child under 16 cannot consent to sexual penetration. There are two reasons;
(a) firstly, to protect a child from harm that can come from premature sexual activity, and
(b) secondly, to deter adults who would contemplate having sex with someone under 16.
73I must take into account, in accordance with established legal principles, general deterrence and protection of the community are primary sentencing considerations for sexual offending involving children.
74Your offending occurred within a 24-hour period. As to its objective seriousness, I consider a single episode of protected sexual intercourse, with your girlfriend, which would not have been a crime had you waited a relatively short time, is a low-end example of the crime of sexual penetration.
75I also consider, touching her breasts, while the two of you were kissing and cuddling, is also a low-end example of the crime of sexual assault.
76Your intellectual disability moderates your moral culpability.
77Although the objective gravity of your offending was low-end, and your moral culpability is reduced, your crimes remain serious.
78Ordinarily, a term of imprisonment would be warranted.
79However, there are mitigating factors which significantly moderate the sentence I will impose.
(a) Firstly, your guilty plea has spared your victim any involvement in the proceedings.[32] It has high utilitarian value which is enhanced because it alleviates the pandemic related strain on the justice system.[33] You are entitled to a significant sentencing benefit for your guilty plea.
(b) Secondly, I accept you are remorseful and have learned your lesson. You admitted your wrongdoing to police, you pleaded guilty at the earliest opportunity and you have not reoffended.
(c) Thirdly, because your intellectual disability is a contributing factor in your offending, your moral culpability is reduced and general and specific deterrence are to be moderated. Your disability also bears on the type of sentence I should impose and it would make prison harder for you.
(d) Fourthly, you are a low risk of sexual reoffending and your prospects of rehabilitation are good; and
(e) Fifthly, you are a relatively young offender, who has no criminal record. Your rehabilitation is a primary sentencing consideration.
(f) Sixthly, there has been a delay of more than 3 years in prosecution. During this time, you have not offended, and your reformation is advanced.
[32] Carter (a pseudonym) v the Queen (2018) 272 A Crim R 170.
[33] Worboyes v The Queen [2021] VSCA 169.
80I have read the cases of Cooke and Treloar. There are similarities between the offending of each of them and yours. Cooke had suffered a traumatic brain injury resulting in autism. Treloar had an intellectual disability. The moral culpability of each of them, like yours, was reduced. I have used both cases as a yardstick against which to measure the appropriate sentence for you.
Community Correction Order Assessment
81A community correction order, tailored to address the causes of offending and to reduce the risk of re-offending, can meet all sentencing objections, even in cases of serious offending, and, especially, in the case of a young offender.[34]
[34] Boulton v The Queen (2014) 46 VR 308.
82I have had you assessed for a community correction order and you have been found suitable.[35]
[35] Exhibit F.
83You were also assessed as a low risk of general reoffending.
84In the case of offenders with an intellectual disability, the Court may attach a Justice Plan condition to a community correction order.[36] Accordingly, I have obtained a Disability Justice Report and Plan.
[36] Sentencing Act 1991 (Vic), s 80(1).
85In your interviews with Community Corrections and Disability Justice, you said you are living with your parents and work 4 days on and then 2 days off at a nearby dairy farm. You now have a more age-appropriate girlfriend. You also play Australian rules football with local team.
86I have received a statement from the Department of Families Fairness and Housing that you have an intellectual disability within the meaning of the Disability Act 2006.[37]
[37] Exhibit H.
87A Disability Justice Coordinator, Rod Gaut, prepared a disability overview report.[38] You expressed a positive attitude to getting forensic disability services help. You have NDIS funding which hopefully can assist you to improve your work skills and social and interpersonal skills. In a proposed Justice Plan, Mr Gaut recommends your enrol at Warrnambool TAFE in general education and automotive engineering courses.[39] He also recommends counselling, and sex education, to help you improve your interpersonal relationship skills. Disability Justice will assist you with the recommended education and personal development programs.
[38] Exhibit E.
[39] Exhibit D.
88A MHARS assessment indicates you do not require ongoing court mandated assessment or treatment for mental health.
89Overall, in the special circumstances of your case, I am satisfied a community correction order, with a justice plan attached, is the appropriate sentence.
90Mr Kirk, by the sentence I impose I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind.
91Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:
on the charges of sexual penetration of a child under the age of 16 years and sexual assault of a child under the age of 16 years you are convicted and released on a community correction order which will commence today. The duration of the order is 2 years.
92I impose the following special conditions:
·200 hours community work;
·supervision; and
·a justice plan.
93I direct up to 75 hours of Disability Justice programs, which you undertake, be credited towards your community work.
94While there is some artificiality to the process I declare but for your plea of guilty I would have sentenced you to 2 years and 6 months’ imprisonment and directed you to serve a minimum period of one year and 3 months’ before being eligible for parole.
Sex Offenders Registration
95Under the Sex Offenders Registration Act 2004 (‘SORAct’), sexual penetration of a child under 16 is a Class 1 offence. Sexual assault of a child under the age of 16 is a Class 2 offence. As the two offences occurred within a 24-hour period they are to be treated as a single offence for the purposes of calculating the applicable reporting period, which is 15 years.
96Because you were 19 years old when you offended you are eligible to apply for a registration exemption order.[40]
[40] Sex Offenders Registration Act 2004 (Vic), s 11A(1)(b).
97Having regard to the factors set out in sections 11A and 11B of the SOR Act, including that;
·Isla was over the age of 14 years; and
·you pose a low risk to the sexual safety of others in the community
I am satisfied that it is appropriate to make a registration exemption order and I declare you are not a registrable offender in respect of the offences for which you have been convicted.
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