Director of Public Prosecutions v Kitching (a pseudonym)

[2023] VCC 1424

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

AT Melbourne

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

V

DALE KITCHING (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	10 August 2023
DATE OF SENTENCE:	10 August 2023
CASE MAY BE CITED AS:	DPP v Kitching (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1424

REASONS FOR SENTENCE

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Subject: Criminal law - sentence

Catchwords:              Plea of guilty to one charge of sexual penetration with a child under 16 – accused aged 14 or 15 at the time – complainant aged 12 or 13 – accused is uncle of complainant – sexual games culminating in oral penetration on one occasion – accused aged 24 at time of sentence – no previous or subsequent convictions – employed full time and in long-term relationship – low risk – youthful offender – custodial sentence not appropriate.         

Legislation Cited: s. 75 Sentencing Act 1991          

Cases Cited: R v Boland (2007) VR 300; DPP v Sherritt [2015] VSCA 1 [33]

Sentence: 12 month adjourned undertaking; condition for counselling; no conviction recorded.     

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms H Baxter	OPP
For the Accused	Mr M Sturges	Emma Turnbull Lawyers

HER HONOUR:

1       Dale Kitching[1], you have pleaded guilty to one charge of sexual penetration of a child under 16.  This occurred between 1 January 2013 and 12 December 2014 when you were aged between 14 and 16.  You are now aged 24.  The complainant is your niece, Miley Rees[2], who was then aged between 12 and 13.  You are two years and three months older than her.  She lived with her mother and siblings, and she has a cognitive impairment as a result of a mild brain injury and mental illness.  You had spent a lot of your childhood with her as you often visited her home with your mother, who is the complainant's grandmother.  The home had a freestanding bungalow at the rear of the house.  Near the bungalow was a trampoline which was difficult to see from the back of the main house.  In 2012, when the complainant was in Year 7 at school, she moved into the bungalow. 

[1] A pseudonym.

[2] A pseudonym.

2       One day in July 2012, when the complainant was aged 11 and you were 13, you played a game of dare with her in her bedroom.  You dared her to kiss you on the cheek, which she did, and you then dared her to sit on your lap.  She said no, but you told her she had to and told her to sit properly instead of just on one side of your legs. 

3       On a date between January 2013 and December 2014, the two of you were sitting on the trampoline behind the bungalow.  You touched her on the bottom and on the breast, and you kissed her.  You then removed your erect penis from your pants and told her to suck it.  You placed your penis inside her mouth and moved her head up and down until you ejaculated in her mouth.  You think that you were either 14 or 15 at this time. 

4       At the end of 2014, the complainant moved to a new address where there was limited opportunity and privacy, and there was no further sexual offending. 

5       On 15 September 2019, the complainant told her mother, Melanie Rees[3], that she had been sexually abused by you.  The next day, Ms Rees visited her mother, Aileen Kitching[4], your grandmother, and told her of the complaint.  Ms Kitching immediately confronted you in your bedroom with the complaint.  She asked 'Did you do sexual things to [Miley]?'  She asked you the same question three times, but you did not respond.  It was only after Ms Rees yelled the question to you and Ms Kitching asked the question a fourth time that you nodded your head in response. 

[3] A pseudonym.

[4] A pseudonym.

6       The complainant made a statement to police on 22 October 2020 in the form of a VARE.  Two months later, on 16 December 2020, you went to the police station as arranged, and you were arrested.  You told the police that the sexual touching went on for a year to a year and a half, occurring every month or two. 

7       The first court hearing was not until January 2022.  The matter resolved in April this year. 

8       The complainant provided a victim impact statement in which she explained her experiences of anxiety stemming from fear of running into you, resulting in the need for psychological and psychiatric treatment over the years since 2014.  Initially these appointments were bulk billed, but that ceased in 2021 and she is considerably out of pocket for these expenses.  The offending has caused a rift in the family, with the complainant's grandmother disowning her as she refused to forget what happened to her. 

9       You were of course a child when you committed this offence.  You made full admissions to the police and told them that the activity was consensual, and it was on this basis that the case against you was resolved. 

10     You grew up with four siblings in a household where your parents' relationship was volatile.  They separated when you were seven.  Your childhood was not happy, and you remember your mother as being short tempered and constantly angry.  You completed Year 12 at school, but you were bullied because of your weight.  On leaving school, you went straight into the workforce as a pizza delivery driver, then as a labourer, and eventually as a spray painter, which is your current occupation.  You have never been a drug user and have only recently resorted to drinking alcohol in greater amounts than previously.  You have no mental health issues.  You are presently in a long‑term relationship with a woman who is studying to be a teacher.  She attended court today in support of you.  You are living with your father and you remain close to your mother, both of whom were prevented from coming to court by reason of their ill health.  You have no previous convictions and are otherwise a person of good reputation. 

11     Your plea of guilty followed negotiations and was indicated at an early stage, with witnesses being spared from cross‑examination.  For that reason, together with the utilitarian benefit to the criminal justice system in saving the expense and inconvenience of a trial, you are entitled to a discount on your sentence.  The backlog of cases still being dealt with by the court due to the pandemic is also assisted by your plea, and I take that into account.  Your admissions and your plea are also indications of remorse, which lends weight to your prospects for rehabilitation.  Your good work history and stable family situation add to the likelihood of a low risk of reoffending.  Importantly, your youth at the time of the offending and even now is a significant matter to be taken into account.  The courts recognise the rehabilitation of young and youthful offenders plays an important role in the sentencing task. 

12     There was a delay of just over a year between your interview with the police and the first court hearing in January 2022.  The complaint had been made at least five years after it had occurred, which is a common occurrence in cases of this type.  If it had been made earlier, you could have been dealt with as a child rather than in the adult jurisdiction of this court.  As it is, you have had the matter hanging over your head for about four years with the anxiety and stress associated with it.  I am told this has led to you drinking alcohol in greater amounts than otherwise and you recognise the need to seek professional assistance to overcome that matter. 

13     The delay, your youth, and your significant degree of rehabilitation mean that leniency in sentencing you is warranted. 

14     The fact that you were a child at the time means that general deterrence as a sentencing principle has only a small part to play.  Specific deterrence has little or no role to play given your demonstrated rehabilitation to date.  Although protection of the community from sexual offenders against children is always important, I take into account that the offending was about 10 years ago when you yourself were a child. 

15     The maximum penalty for this offence is 10 years' imprisonment.  The sentencing submission made on your behalf has emphasised your youth at the time, referring to authorities which explain the need to treat child offenders differently.  Indeed in one case the Court of Appeal noted that the child offender in that case was unlikely to have been imprisoned with youth detention, the most serious possible option.  Youth detention is not available for those aged older than 21.  During the 10 years since the offending, you have not offended again but have matured and have demonstrated your rehabilitation, as I said earlier.  Given those circumstances, a non‑custodial sentence is warranted.  The prosecution accepts that a non‑conviction and non‑custodial sentence is open. 

16     Taking all those matters into account, I will impose a non‑conviction adjourned undertaking requiring you to be of good behaviour for 12 months.  There will also be a condition that you engage in counselling with an appropriate professional person within that 12‑month period. 

17     Would you stand please, Mr Kitching. 

18     Do you agree to be bound by such an undertaking? 

19     OFFENDER:  Yes. 

20 HER HONOUR: Thank you. That'll be available for you to sign shortly. Before we get to that ‑ be seated for the moment ‑ Ms Baxter, s6AAA, does that apply in the case of an adjourned undertaking?

21 MS BAXTER: Section 6AAA would always apply, Your Honour.

22 HER HONOUR: Pursuant to s6AAA of the Sentencing Act, if you had pleaded not guilty, I would have imposed a fine as well as an adjourned undertaking.    Mr Sturges, would you like to accompany my associate to the dock  for signature? 

23     MR STURGES:  Thank you, Your Honour.

Adjourned undertaking signed and acknowledged.

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