Director of Public Prosecutions v Kirk (a pseudonym)
[2019] VCC 2009
•2 December 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
SEXUAL OFFENCES LIST
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID KIRK (a pseudonym) |
---
| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 July 2019, 16 September 2019, 20 November 2019 |
| DATE OF SENTENCE: | 2 December 2019 |
| CASE MAY BE CITED AS: | DPP v Kirk (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 2009 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – sexual penetration of a child under 16 – indecent act with a
child under 16 – plea of guilty
Legislation Cited: Crimes Act 1958 (Vic), ss 45(1) and 47(1)
Sentence: Total effective sentence of 5 years and 3 months’ imprisonment and a
non-parole period of 3 years and 8 months’ imprisonment.
Section 6AAA declaration: 6 years and 8 months’ imprisonment with a
non-parole period of 5 years---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P D'Arcy | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr T Fitzpatrick | Slater & King Lawyers |
HIS HONOUR:
1David Kirk, you have pleaded guilty to one charge of sexual penetration of a child under the age of 16, where the child was under the age of 12, and one rolled-up charge of indecent act with a child under the age of 16. The maximum penalties for those charges, respectively, are 25 years’ imprisonment, and 10 years’ imprisonment.
2Tendered on the plea as Exhibit 1 was a Summary of Prosecution Opening. I annex a copy of that document to the sentencing reasons.
3You were 22 years of age, and you were living with your victim Brielle Ling[1] and her family at the home in country Victoria. You were best friends with Brielle's father, Jeremy[2]. When you were homeless, Jeremy and his partner, Sara[3], Brielle's mother, had taken you in and provided you with not only a roof over your head, but also with a sense of security and stability. You quickly became a part of the family. Brielle, who was five years old and had three siblings aged four, eight and ten respectively, called you Uncle David. You were trusted to spend time alone with the children.
[1] Brielle Ling is a pseudonym
[2] Jeremy is a pseudonym
[3] Sara is a pseudonym
4On Tuesday 9 May 2017, you, Sara and Jeremy, spent the day at home playing Xbox while the children were at school. It seems that you and Jeremy drank some cask wine during the course of the day. The children were put to bed about 7:00pm. Sara checked on Brielle, about 20 to 30 minutes after she was put to bed and found her to be asleep. After the children were all in bed, Jeremy and Sara told you that they were going to the supermarket, and at 7:50pm, Jeremy and Sara left the house, leaving all the children in your care for a period of about 40 to 50 minutes.
5Whilst Jeremy and Sara were gone, you entered Brielle's bedroom, woke her up, and put your penis into her mouth for an unknown period of time. Brielle said in her VARE that, '[David] put his winky in my mouth', winky being the word Brielle's family used to describe a penis. That offending underpins Charge 1.
6You then made Brielle touch your penis with her hand. After that act, you unbuttoned Brielle's jumpsuit, and touched her vagina outside her underwear. In her Video and Audio Recorded (VARE) statement, Brielle said that, 'he let me touch his winky' and further that he touched her 'marshmallow, where the dot is' and that the 'marshmallow is used for weeing'. Brielle said that it felt that you were hurting her body. Those two separate acts underpin Charge 2, a rolled up count of an indecent act with a child under 16.
7At about 8:30pm, Jeremy and Sara returned home. Upon hearing their vehicle, you buttoned up Brielle's jumpsuit, but mismatched her jumpsuit buttons. Jeremy went to check on the children and discovered you exiting, coming out from the laundry, across the hallway from Brielle's room. You said you were getting a refill of wine from the fridge in the laundry. You walked back to the dining room.
8Brielle then came out of her room and approached her father saying, '[David] put his winky in my mouth'. According to both parents, you immediately denied such offending, swearing on your parents' graves that it was not true. Jeremy and Sara took Brielle into her bedroom and had a further conversation with their daughter about what you had done to her.
9Sara noticed that Brielle's jumpsuit buttons were misaligned and asked Brielle what had happened. Michelle pointed to her vagina and said that you made her touch your penis and put your penis in her mouth. Brielle said that you had stopped when Jeremy and Sara returned home. Jeremy said to you, 'you realise if she's telling the truth, you're a dead man'. You did not deny the allegation, and only said, 'yep, yep'. You were told to find somewhere else to stay and left the house.
10The following day, the police were contacted and informed about Brielle's disclosure. At about 11:40am that day, Brielle participated in a VARE interview. You were arrested and interviewed by police on 10 May 2017. In that interview, you denied the offending as you were of course entitled to do. However, you admitted drinking cask wine and smoking marijuana throughout the day, and that you could not remember everything that had happened that night.
11Following your interview, you moved to New South Wales to live with your grandmother. However, you were arrested in New South Wales on 5 November 2017, for supplying prohibited drugs, and you were remanded in custody. Charges were laid in respect of this offending on 22 November 2017, and a filing hearing was held on 14 December 2017. On both these dates, you were in custody interstate. The matter was adjourned.
12On 14 December 2017 at the Griffith local court, you were sentenced to two years' imprisonment on the New South Wales drug matters, with a non-parole period of nine months. You were released on parole on 13 September 2018. You failed to attend the adjourned hearing of this matter in Victoria on
23 October 2018, and a warrant was issued. You were extradited to Victoria on 20 December and remanded on this matter on 21 December 2018.13You have been on remand in respect of this matter ever since. The matter proceeded by way of a straight hand-up brief, and it resolved in this Court. Initially, there was to be a contested plea, however, that contested plea did not proceed, and you ultimately pleaded guilty before me to the two charges on the Indictment on 5 April 2019. The prosecution accepted, most fairly, that your plea was entered at an early opportunity.
14Tendered by the prosecution on the plea was a Victim Impact Statement from Sara, Brielle's mother, exhibit 2. Sara states that, '[Brielle] has been so effected by what she endured. She is so angry and confused by her emotions all the time. Someone she trusted, idolised, and loved, took advantage of her'.
15Sara speaks of how she and Brielle’s father feel overwhelmed by their emotions: 'hate, betrayal, loss, confusion, disgust, hurt, grief'. She states that the hardest part for her and Jeremy as parents, is ‘trying not to punish our other children for our trust and insecurity issues. We find ourselves doing just that almost every day. She has developed anxiety. Brielle has been regularly counselled, and diagnosed with post-traumatic stress disorder and anxiety. Brielle still has regular and ongoing counselling and continues seeing a paediatrician.
16Now whilst the impact of your offending cannot be permitted to overwhelm the sentencing process, there can be no doubt, Mr Kirk, of the devastating and traumatic effect of your offending.
17I turn now to your personal circumstances.
18You were born of August 1994 and you are now 25 years of age. You were 22 at the time of this offending. Tendered on your plea was a report from Kate Joyner, educational and child psychologist, dated 23 February 2010, exhibit 3BH. Ms Joiner had assessed you in 2010, to determine your level of cognitive functioning. You were then 15 years and five months of age.
19Also tendered was a report from Bob Ives, a forensic psychologist dated 4 May 2015, which had been prepared for an earlier court appearance (exhibit 4BH); A statement of intellectual disability dated 16 February 2015 (exhibit 5BH), and the client overview report dated 15 June 2015 (exhibit 6BH) were also tendered on your behalf on the plea. From all that material, a consistent picture emerges of your cognitive ability, variously described as within the extremely low, borderline or intellectually deficient range, and of your disadvantaged childhood and adolescence.
20You were born in Wonthaggi. Your parents, Neville and Sharon, were both of Aboriginal heritage. You have an elder brother and sister. Your extended family lived in South-Eastern Victoria and around Wagga Wagga in New South Wales. Your mother died from a heroin overdose when you were aged two. You have no memory of her. You lived with your father and his new partner in Wonthaggi, Collingwood, and Wagga Wagga. This lack of a stable home environment affected your schooling, and your ability to develop any attachment to either places or people. Your father died in 2008 when you were aged 14. He had been actively involved in drug trafficking and he spent frequent periods in prison.
21Your family lived in poverty. You frequently had to steal to provide basic necessities, not only for yourself but for your family. Without any parental guidance, it seems that you fell through the cracks. Department of Health and Human Services involvement is noted in your file. When your father was in prison, you would at times be looked after by members of your extended family; but often you would be on the street, having to live by your wits.
22You have abused drugs, including methamphetamine and alcohol since early adolescence, and I note that your father introduced you to both cannabis and alcohol at the age of 12. You completed Year 8 in New South Wales, and your work history is limited to a six month period in a slaughterhouse in Wonthaggi.
23You have been variously diagnosed with behaviour disorder, ADHD, Tourette syndrome, and an intellectual disability, and you have received a disability pension from the age of 17.
24You have a criminal history of prior appearances in the Children's Court and the Magistrates' Court, going back to 2009, when you were aged 14. They revealed a criminal history of violence, dishonesty, and driving offences. There is, however, no prior history of sexual offending.
25In his report, exhibit 4BH, Mr Ives wrote,
‘His unstable and ill-disciplined family life, his precocious drug and alcohol use on a daily basis, his lack of intellectual ability and unruly temperament all contributed to his frequent absences from school, poor behaviour, lack of application and motivation, and poor results'.
26You had been living with your sister, but you tried her patience, through your inability to keep the rules of the household, or even conduct your own personal care. I note that both your sister and brother are currently in prison for drug offences.
27Mr Ives wrote of the connection that you had made with the Ling family at page 10 and 11 of his report of May 2015. He described Jeremy's troubled upbringing, but of how he and his partner have a stable relationship, and how they had created, perhaps against the odds, a loving family. They took you under their wing, and Mr Ives writes,
'The [Ling] family have provided the most stable, accepting, understanding environment that Mr Kirk has experienced. He has bonded to Mr [Ling], regards him as a mentor, and the two spend a good deal of time together, working on cars and fishing'.
'They [that is you and Jeremy] appear to have established in fact a mutually helpful, workable, therapeutic relationship'.
[Mr Kirk] has recently been declared eligible for a disability pension, and this also assists in the stability and the security he is now experiencing in his life'.
28So that was a glimpse of your life in 2015, Mr Kirk.
29Also tendered on your plea was exhibit 7BH, a report from Jeffrey Cummins, clinical and forensic psychologist, dated 12 June 2019, prepared in respect of this offending. Mr Cummins assessed you on one occasion via a videolink. He confirmed your history, your low level of intellectual functioning, and raised the possibility of a borderline personality disorder. Mr Cummins assessed your current risk of further sexual offending against a child as being low to moderate.
30Significantly, you told Mr Cummins that,
'I haven't even got a vague memory of this. At the time, I would've been smoking dope and drinking alcohol heavily every day and I was probably also smoking a fair bit of Ice, although I can't specifically remember how much I was using at that time. I know around that time, I was getting through cask wine daily. The thing is, I don't really want to think of myself as having done these things, but she said I did them and so I'm pleading guilty'.
31Mr Cummins recommended treatment for your alcohol and drug dependency and offence specific treatment. In Mr Cummins' mind, your inability to recall the answers to even straightforward questions, raised the possibility of an acquired brain injury. He recommended that a neuropsychological report be prepared.
32Your plea was adjourned to enable such a report to be prepared. Exhibit 8BH was a report of clinical neuropsychologist Anna McClaren dated 17 October 2019. Ms McClaren detailed your personal and forensic history. However, her stark conclusion was that you had not produced a valid and interpretable profile. Consequently, Ms McClaren could provide no assistance to the Court. She was unable to comment on whether you suffered from an acquired brain injury, either now or at the time of the offending, or whether you were cognitively impaired.
33Ms McClaren was also unable to comment on whether there was a connection between cognitive impairment of any kind and the offending, and whether prison would be more difficult or onerous for you, from a neuropsychological perspective. She did stress the need for some intervention in relation to your substance abuse, and noted that should you continue to use drugs, then you would be at risk of cognitive decline.
34Exhibit 9BH on the adjourned plea was a report from David Willshire, a principle consultant psychologist at Forensicare, commissioned by the Court and dated 7 November 2019. You reported to Mr Willshire your bad memory, your inability to recall the circumstances of the offending to which you have pleaded guilty, and suggested that perhaps Brielle's parents had made up the allegation. When asked how you thought a child might have been affected by being the victim of such behaviour, you replied, 'I wouldn't have a clue'.
35Mr Willshire's conclusions were that you were a very poor historian, unable to remember key aspects of your life, and unable to remember this offending. You presented, in his words, as being,
‘… an isolated, even socially avoidant, young man, with no one in his life that he might rely on'.
36As to the offending itself, Mr Willshire stated,
'It appears that his offending may have been an opportunistic act in the context of drinking alcohol (although the victim's mother asserted he had been “fairly sober”) and smoking marijuana'.
37Mr Willshire raised the possibility of you engaging in deliberate denial due to the repugnant nature of your offending, however, recognised that this was merely conjecture. I make no finding in relation to this aspect of his opinion.
38Risk assessment suggested that you posed a moderate or even moderate to high risk of sexual reoffending, and a high risk of general reoffending. In order to reduce sexual reoffending, there was a need for you to address your substance abuse, your lack of relationships with adults, employment instability, your resistance to rules and supervision, and lack of engagement in meaningful activities when not in prison.
39On your behalf, Mr Fitzpatrick of counsel accepted that this was serious offending, involving a gross breach of trust, and that the only appropriate disposition was a term of imprisonment, with a head sentence and a non-parole period. He submitted there was a link between your consumption of alcohol and cannabis and the offending whilst making clear that any such link could not be in mitigation of your offending. He submitted, correctly, that you were still a relatively young man. He urged upon me the deprivation of your childhood, which taken together with your intellectual disability, reduced the need, in your case, for general deterrence.
40He submitted, correctly, that your plea of guilty brought with it the immense utilitarian benefit of saving the community the time and expense of a trial. It also saved your victim and her family from the trauma of having to give evidence. As such, he submitted, your plea was of real value and was also a sign of remorse. Further, your plea was entered at the earliest opportunity.
41He submitted that whilst you could not remember the offending, you were still demonstrating a legitimate disgust at what you were alleged to have done, which should be seen by me as a sign of your remorse. Your apparent inability to recall the offending was, he said, part of a longstanding memory deficit.
42He submitted correctly, that the principle of totality was engaged, having regard to the custodial sentence you had served in New South Wales. His ultimate submission was that I should fix the head sentence, with an even shorter than normal non-parole period to enable you to be supervised within the community, should you obtain parole.
43Mr D'Arcy, learned counsel on behalf of the prosecution, submitted that this was a very serious example of this type of offending. Not only was your victim of a very tender age, but the impact of your offending had been devastating upon her and her family. The offending constituted a gross breach of trust. He conceded your plea had been entered at an early opportunity, and further accepted that your plea had real value. He questioned whether it was open on the evidence to find remorse.
44He also submitted that on the material in front of the Court, there was no basis for a finding on the balance probabilities that you were not a suitable vehicle for general deterrence. He accepted the principle of totality as engaged, in light of the intervening sentence that you received in New South Wales.
45Mr Kirk, offending against children will always be viewed by the courts as serious offending. There has been a growing recognition by the courts, of the lasting impact that such offending has upon children, and how it can often lead to lives that are not fully lived.
46Children who have been sexually offended against have their innocence and their sense of self stolen from them. They blame themselves for acts committed against them by adults, and for which they are completely without blame. Sometimes, they struggle to engage in healthy relationships. They struggle to find their place in the world.
47Crimes against children are nothing more, nor less, than crimes against our common future, and therefore are crimes against our common humanity. The courts have said time and time again, that they will do everything within their power to protect children.
48Your victim has already demonstrated behavioural concerns that require intervention. Nonetheless, it is clear that your victim is supported by her loving parents. The responsibility for her distress, lies very firmly with you and nowhere else.
49Your victim's father, Jeremy, had struggled with his own childhood, but he nonetheless reached out to you. He became a mentor to you. He and his partner, Sara, offered you a home and they welcomed you into their family. They provided you with the stability and a sense of belonging that you had previously never experienced, and you repaid their kindness and support, by offending against their young daughter.
50While the children had been briefly left in your care, you crept into Brielle's bedroom, placed your penis into her mouth and touched her vagina, and placed her hand upon your penis. You offended against Brielle in her own home, and in that home, she had an absolute right to feel safe and secure. Your offending in my view was both a betrayal of Brielle's parents, but also a gross breach of the trust that they had placed in you.
51It is not clear to me why you should have chosen to offend in this manner. I accept that you had a childhood only in name. Your parents are your biological parents and nothing more, having failed in their basic and fundamental duty of providing you with guidance, moral boundaries and values. However, on the material in front of me, in your childhood, you were not exposed to family violence, nor were you exposed to sexual abuse.
52As a matter of common sense, people usually act upon their desires. But you have denied any sexual attraction to children. Any connection between the disinhibiting effect of alcohol and this offending is purely speculative, and it does not address the question as to why you should have chosen to have offended in this manner. You have demonstrated no insight into the impact of the offence upon your victim, and I can find little, if any, evidence of remorse.
53You insist that you have no memory of the offending, and this inability to recall may be genuine. However, on the material in front of me, I can make no assessment as to your prospects of rehabilitation.
54The sentencing process is not about revenge, and the sentencing process is not about retribution. The sentencing process cannot give back to your victims that which they feel has been taken from them.
55In sentencing you, I must have regard to a range of different factors. I must give effect to the principle of general deterrence, suitably moderated, and I accept there is room for moderation in your case. That is, I must deter others from behaving as you did.
56I must consider specific deterrence, that is, I must deter you from any such repeat of this offending. I must consider the need to protect the community from you. In my view, only successful engagement in treatment will reduce your risk of reoffending. I must express the community's denunciation of your conduct and I must take into account the effect of your crimes upon your victims. I must have regard to the statutory maximum penalties for the offences to which you have pleaded guilty, and to current sentencing practices.
57In short, I must try to balance your personal circumstances with the circumstances of your offending, and I am required by law, to pass no longer sentence than is necessary.
58General and specific deterrence, just punishment, denunciation, and protection of the community are all relevant sentencing purposes in your case. I have had regard to all of the matters urged upon me, so persistently, by counsel who undoubtedly did his best to place everything in front of me. For the avoidance of doubt, I have taken into account your plea of guilty, your youth, your Aboriginal identity and heritage, the circumstances of your upbringing and the principle of totality.
59Nonetheless, as your counsel concedes, and as you must be only too well aware, the gravity of your offending can only be met by a substantial term of imprisonment.
60Mr Kirk, if you could please stand.
61On Charge 1, sexual penetration of a child under 16, you are sentenced to a term of imprisonment of five (5) years.
62On Charge 2, indecent act with a child under 16, you are sentenced to a term of imprisonment of two (2) years and six (6) months. I am ordering that three (3) months of the sentence on Charge 2 run cumulative to the sentence on
Charge 1.63This makes a total effective sentence of five (5) years and three (3) months.
64I declare that you must serve three (3) years and eight (8) months before you are eligible for parole.
65Pursuant to section 18(4), I direct that you have served 347 days of the sentence that I have passed upon you, and I direct that this be entered into the records of the Court.
66Pursuant to section 6AAA of the Sentencing Act 1991 (Vic), had you not pleaded guilty, you would have been sentenced to a total effective sentence of six (6) years and eight (8) months’ imprisonment, with a non-parole period of five (5) years.
67Pursuant to the Sex Offenders Registration Act2004 (Vic), you are now,
Mr Kirk, a registrable offender. That means you are subject to provisions of that Act and the period of registration, that is, during which you remain a registrable offender, is for the remainder of your life.68Now, you are required to sign a document which acknowledges that you have received a copy of your obligations. I am going to allow Mr Fitzpatrick to go with my associate, Ms Marthick while you sign it.
69MR FITZPATRICK: Thank you, Your Honour.
70HIS HONOUR: Now Mr Kirk, it is important that you understand that the legislation, the Sex Offenders registration legislation is designed to protect children. So, what it means is that when you are released from prison either at the end of your sentence or at parole, should you get parole, you are required to report to your local police station, and you will be given some guidance as to where that is.
71You will have to provide your name, your address, the registration of any vehicle that you have. Most importantly in this modern world, all of the online identities that you have. Failure to comply with those requirements is a criminal offence, and those who breach the requirements are almost always prosecuted.
72If you are prosecuted for a failure to comply, you will be sentenced almost certainly, to a term of imprisonment. All right, so it is very important that you stick to those requirements when the time comes. But I would be grateful, Mr Fitzpatrick, for you for just running through.
73MR FITZPATRICK: Yes, Your Honour.
74HIS HONOUR: But as I say, I anticipate Mr Kirk will be given some guidance and assistance as part of a transition program, back into the community.
75MR FITZPATRICK: I think if he does become eligible for parole or given parole, that is one of the things I think ‑ ‑ ‑
76HIS HONOUR: Yes, yes. I am only too well aware of that. Now, I am going to make an order permitting police to take an intimate sample from you. Now, I have to tell you that when officers come to take the sample, this is just a DNA Sample, it is usually just a buccal swab, it is a little q-tip inside your gums to get some of your saliva. Should you refuse to provide the sample - and I am sure there will not be any issue - officers are entitled to use such force as is reasonably necessary in order to take the sample. Is that clear, Mr Kirk?
77OFFENDER: Yes, Your Honour.
78HIS HONOUR: All right. Thank you for that, so I have signed that. I think
Mr D'Arcy, that was the only ancillary order, was it not in that regard?79MR D'ARCY: Yes, that is right, Your Honour.
80HIS HONOUR: Now, Mr Fitzpatrick, custody management issues?
81MR FITZPATRICK: Your Honour, I had not really canvassed that with my client but ‑ ‑ ‑
82HIS HONOUR: Is he on any medication? Can I speak directly to him? Are you on any medication, Mr Kirk?
83OFFENDER: No, Your Honour.
84HIS HONOUR: No, all right. So this has not been his first time in custody, because he has done his time up in New South Wales. All right. Well, I will note the fact that he has been stated as having intellectual disability. I will also note his Aboriginal heritage and identity. What is your mob, Mr Kirk?
85OFFENDER: Wiradjuri tribe.
86HIS HONOUR: Wiradjuri tribe, all right. Do you identify as a member of that mob?
87OFFENDER: Yes.
88HIS HONOUR: All right. Yes, thank you, Mr Kirk. Would you be so good as to go with those officers. Thank you, gentlemen.
89To the parents of the victim, you have heard me say that the sentencing process cannot be, is not, about revenge and retribution and it cannot be about revenge and retribution. The court strives, struggles sometimes, to do what is just, to everyone involved. I know that Mr D'Arcy made that clear to you on an earlier occasion, and the reason why there have been delays was because I wanted to know as much as I could about Mr Kirk.
90All right, so I thank you again for the dignity that you have shown throughout this. Well, Mr D'Arcy, do you want me to keep up the link, so you can have a word?
91MR D'ARCY: Yes, that would be good.
92HIS HONOUR: So I am going to stand down now. You do not have to get up. But I am going to keep the link open and the volume will be turned back up so you can be heard as well, so that Mr D'Arcy can have a word with you.
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