Director of Public Prosecutions v Lancaster (a pseudonym)

[2023] VCC 1710

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALEX LANCASTER (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE ROZEN
WHERE HELD:	Melbourne
DATE OF HEARING:	5 September 2023
DATE OF SENTENCE:	19 September 2023
CASE MAY BE CITED AS:	DPP v Lancaster (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1710

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence Indication – Plea of guilty – Rolled up charge of sexual penetration of a child under 16 – 15 year old victim – Vulnerable – Standard sentence offence – Criminal history

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)

Cases Cited:Clarkson v R (2011) 32 VR 361; Ibbs v The Queen (1987) 163 CLR 447; DPP (Vic) v Elfata [2019] VSCA 63; DPP v Hermann [2021] VSCA 160; Bugmy v R (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269

Sentence: Imprisonment for 4 years with a non-parole period of 2 years and 6 months – s 6AAA declaration – 5 years’ and 9 months’ imprisonment with a non-parole period 4 years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms E. Fargher	Solicitor to the OPP
For the Accused	Mr C. Hooper	Ann Valos Criminal Law

HIS HONOUR:

1Alex Lancaster[1], you have pleaded guilty to one charge of sexual penetration of a child under the age of 16, contrary to s 49B of the Crimes Act 1958 (Vic). The offence carries a maximum penalty of 15 years’ imprisonment.

[1] A pseudonym.

2The charge is a rolled-up one, comprising two instances of penetration across two days.

3On 7 August 2023, you applied pursuant to s 207(1)(a) of the Criminal Procedure Act 2009 (Vic) for a sentence indication. I granted that application and gave an indication, in the form of a maximum total effective sentence, of 4 years’ imprisonment with a non-parole period of 2 years and 6 months.

4Your counsel informed the court that you accepted the indication. This means that, in law, you cannot now be sentenced to a more severe sentence than the one indicated.[2]

[2] Criminal Procedure Act 2009 (Vic.), s 209.

5You are to be sentenced on the basis of the ‘Summary of Facts for Sentence Indication’ dated 4 August 2023.[3]

[3] Exhibit P1.

Summary of Offending

6At the time of the offending, you were homeless, living on the streets of Melbourne’s CBD.

7Just before midnight on Christmas Day 2021, Lucy Orange[4], a girl of 15 years and three months had left home and was wandering the streets of the CBD when she met you. You were eating potato chips when Lucy approached you, telling you she had left home and was hungry. You asked her how old she was and she told you 15. You told her that you had missed a plane back to ‘somewhere’ and that you had a wife and a 5-year-old daughter.

[4] A pseudonym.

8After you met, you told her to come with you. You led her down a number of alleyways, finding a place to sit down. Lucy started crying because she was upset and did not know where to go. You started rubbing her on the shoulder, a gesture Lucy perceived as you being nice. You then started moving your hand towards her breast and rubbed her breast under her clothing (Uncharged act).

9You then told Lucy to come over to where your bed was around the side because you wanted to lie down. You told her to “take [her] fucking pants off”. Lucy told you that she did not want to, said no, and started crying. Lucy did not take her pants off, instead, turned and fell asleep.

10In the early hours of the next morning, 26 December 2021, you took Lucy to where a group of your friends were and you stayed there a while. Lucy can only remember a man called Leon and three other men, whose names she does not recall. The men were sleeping in sleeping bags.

11Later that morning, the man known to Lucy as Leon moved to sit next to you. As Lucy describes it, you then started “doing stuff” to her. Leon got up and left and you told Lucy to get up. You brought Lucy around behind something that looked like a cage with a hole in it, located near Little Collins Street, near an alleyway. You moved a number of boxes to one side of the cage and took Lucy to the other side.

12You then took your shirt and pants off and told Lucy to take her pants off too. You proceeded to have sex with Lucy, penetrating her vagina with your penis (Charge 1 – Sexual penetration of a child under 16).

13Lucy was crying while you penetrated her vagina and you did not wear a condom. After a time, Lucy pushed you off her while crying and you stopped. You told her to “Be a good girl”.

14Lucy stayed with you for two nights, being Christmas night and Boxing Day night. At some point on 26 December 2021, you also penetrated Lucy’s vagina with your fingers (Charge 1 – Sexual penetration of a child under 16).

15Between approximately 1:30 and 1:40 am on the 27 December 2021, a group walking south on Brunswick Street towards the Glamorama nightclub were approached by Lucy, who asked them for directions to Parliament station or Flinders Street.

16A concerned member of the group enquired about Lucy’s age and, after Lucy told him where she had spent the last two nights, insisted that she return with them to his home. Upon arriving at his house, police were called while Lucy was taken care of by members of the group.

17After interviewing Lucy and conducting enquiries with the men living in your encampment, police identified and arrested you. You were interviewed at Melbourne West Police Station, during which you gave an account in which you admitted you were aware Lucy was underage but insisted that your sexual conduct was initiated by her.

Victim Impact

18The Court received a victim impact statement from Lucy’s mother, Ellie York[5], dated 29 August 2023.[6] Ms York read her statement to the Court.

[5] A pseudonym.

[6] Exhibit P2.

19Ms York describes in harrowing detail the changes she has observed in her daughter’s demeanour since the offending, from sleeping with the lights on, seeking the comfort of soft toys, and wanting to sleep in her mother’s bed.

20In Ms York’s words, the offending has cast a ‘shadow over her innocent spirit’ for which she, as her mother, is ‘on a constant vigil’. The pain your offending has caused is both enduring and profound.

21Although the Court did not receive a victim impact statement from Lucy, there is a legal presumption that child victims of sexual offending will suffer harm as a consequence of offending against them.[7]

[7] Clarkson v R (2011) 32 VR 361, 368-71.

22I take into account the impact on both the primary victim and her mother of your offending.

Objective Gravity

23Sexual penetration of a child under 16 is a very serious offence. So much is clear from the maximum sentence.

24As is the case for most, if not all, offences on the criminal calendar, the gravity of sexual offences depends on the circumstances of the case.[8] I turn now to consider these.

[8] Ibbs v The Queen (1987) 163 CLR 447, 452.

25The charge you have pleaded guilty to is a rolled-up one, comprising one instance of penile penetration and one of digital penetration. For penetration offences, there is no hierarchy of penetration making one offence inherently more or less severe than another.[9]

[9] DPP (Vic) v Elfata [2019] VSCA 63, [36].

26There are several aggravating features of your offending. First, you recognised that Lucy was young and had “problems” and yet proceeded to lead her down various alleyways, away from view, to an area unknown to her where you had sex with her. You also persisted in attempting to sexually engage with her despite her refusal to remove her pants and her visible distress. In addition, the age disparity between you and Lucy was 11 years. Further, you did not wear a condom when you penetrated her vagina, exposing her to disease and pregnancy.

27You again sexually penetrated Lucy later that day, this time using your fingers. You did so with blatant disregard for her attitude towards sexual activity that she had made clear when you had sex with her earlier.

28Although there was an absence of violence, beyond the inherent violence of sexual offending, this is not a matter that mitigates the seriousness of your offending. Instead, it may be characterised as the absence of an aggravating factor.

29Overall, I consider yours to be in the mid-range of seriousness for this type of offending.

Personal Circumstances

30You are 28 years of age now, and at the time of the offending, you were 26. You are the second youngest in a sibship of eight.

31As I have observed, you were homeless at the time of the offending. You left home at age 12 and have led a dysregulated life since.[10]

[10] This section of my reasons draws on the histories taken from you by Ms Gina Cidoni (report dated 12 July 2023) and Ms Daniella Kocic (report dated 2 August 2023).

32You left school in year 11 and commenced a life-long addiction to cannabis in your early teens leading to poly-substance abuse over several years. You were diagnosed with ADHD in school and have experienced significant mental ill-health including auditory hallucinations and intrusive thoughts.

33You have been diagnosed with Bipolar disorder, been the subject of involuntary hospitalisation on several occasions, and engaged previously in major acts of self-harm.

34You also show signs of post-traumatic stress and have experienced extended periods of homelessness and long-term unemployment. You have limited insight into your condition and compromised judgment.

35You have a history of prior offending in three States which dates back to an appearance in the Armidale Children’s Court in 2008 at the age of 14. While you have committed no previous sexual offences you have been sentenced to fines, community service and imprisonment.

36It is particularly concerning that your appearances in court have become more frequent in recent years. You were sentenced on three separate occasions in Queensland courts in 2021 for offences that included contravention of domestic violence order (aggravated offence). In 2020, you were sentenced on four occasions and in 2019 you were sentenced for contravening a domestic violence order.

Matters in Mitigation

37The principal matter of mitigation is your guilty plea. First, the plea represents a recognition by you of your responsibility for your offending and, to some extent, a measure of your remorse.

38Secondly, the plea spares both the victim and her family from having to give evidence at a trial and thereby relives the trauma they would suffer.

39Finally, there is what is referred to as the ‘utilitarian’ benefit of your plea saving scarce public resources from being used up in a trial. You are entitled to an additional discount on sentence because of the ongoing backlog in the courts caused by the pandemic.[11]

[11] Worboyes v R [2021] VSCA 169.

40Your counsel submits that your troubled childhood is relevant to an assessment of your moral culpability. This is a reference to the so-called Bugmy[12] principles.

[12] (2013) 249 CLR 571.

41While I do not consider the evidence establishes a causal link between your undoubted childhood deprivation and this offending, I have taken into account that deprivation in a general way as part of my assessment of your personal circumstances.[13] I have moderated the sentence I am imposing to a small degree as a result.

[13] DPP v Hermann [2021] VSCA 160 at [45].

42Finally, I accept that a term of imprisonment is likely to bear more heavily on you than on a person without your particular mental ill-health and associated vulnerabilities.[14] This enlivens limb 5 of the Verdins[15] principles and I have moderated your sentence to a small extent as a result.

[14] Report of Daniella Kocic dated 2 August 2023, [87]; Report of Gina Cidoni dated 12 July 2023, [72]-[76].

[15] (2007) 16 VR 269 at [32].

Prospects of Rehabilitation

43Ms Kocic assesses you as a high risk of general reoffending based on your criminal history, long term unemployment, homelessness, drug abuse and antisocial attitudes and peers.[16] Ms Cidoni identifies the same risk factors.[17]

[16] Report of Daniella Kocic dated 2 August 2023, [73].

[17] Report of Gina Cidoni dated 12 July 2023, [52].

44For essentially the same reasons I assess your prospects of rehabilitation as poor. Of particular concern is your quite extensive criminal record which means that specific deterrence must play a prominent role in the sentencing calculus.

Statutory Considerations

45The crime of sexual penetration of a child under the age of 16 years is a 'standard sentence offence'.[18] The 'standard sentence' of 6 years' imprisonment is the sentence for an offence against s 49B 'that is in the middle of the range of seriousness'. The court's assessment for this purpose is made taking into account 'only the objective factors affecting the relative seriousness of that offence'.[19]

[18] Crimes Act 1958 (Vic), s 50D(3).

[19] See Crimes Act 1958 (Vic), s 5A(1).

46The standard sentence is one of a number of matters to which the court must have regard and does not affect the approach to sentencing known as 'instinctive synthesis'.[20] Further, in considering current sentencing practices under s 5(2)(b) of the Sentencing Act, the court is only permitted to have regard to sentences previously imposed for the offence as a standard sentence offence.[21]

[20] Sentencing Act 1991 (Vic), s 5B(3).

[21] Sentencing Act 1991 (Vic), s 5B(2)(b).

47Finally, as part of a court’s reasons in a case such as this, it must refer to the standard sentence and ‘explain how the sentence imposed by it relates to that standard sentence’.[22]

[22] Sentencing Act 1991 (Vic), S 5B(5).

48In the case of McPherson v R,[23] the Court of Appeal recognised the 'difficult task' confronting judges in applying the standard sentence regime. It noted that sexual offences against children cover a wide range of sexual misconduct making the notional 'mid range' very difficult to identify. While the task 'must be given its place in the sentencing calculus', their Honours considered that 'judges ought to be wary of affording it too much weight in the sentencing exercise'.[24]

[23] [2021] VSCA 53 (‘McPherson’).

[24] McPherson at [31].

49As noted earlier in these reasons, in considering the objective seriousness of your offending, I have concluded that this is a mid-range example of the s 49B offence for which your moral culpability is quite high.

Current Sentencing Practices

50Neither party referred the court to any cases from which the court could discern current sentencing practices for this offence. I have examined some recent decisions of the Court of Appeal and, within the limits identified by the High Court in Dalgliesh,[25] I have been assisted by them in understanding sentencing trends for this offence.[26]

[25] [2017] HCA 41.

[26] The cases considered were Roberts v The King [2023] VSCA 92; DPP v Conos [2021] VSCA 367; and DPP v Nwigwe [2022] VSCA 14.

Consideration

51The principal sentencing considerations in your case are general and specific deterrence as well as punishment and community protection.

52I have sentenced you to a shorter period of imprisonment than the standard sentence of 6 years having regard to your guilty plea and the other matters of mitigation including your troubled childhood and mental health.

53Taking into account the maximum penalty, the objective gravity of your offending, the impact on the victims and the applicable matters of mitigation, I order as follows:

(a)   On the rolled up charge of sexually penetrating a child under the age of 16 years, you are convicted and sentenced to 4 years’ imprisonment;

(b)   The minimum period that you must serve in prison before becoming eligible for parole is 2 years and 6 months;

(c) Pursuant to s 18 of the Sentencing Act 1991 (Vic) I declare that the 40 days you have spent in custody is to be reckoned as time served in respect of the sentence I impose today and that this be entered in the records of the court.

(d) Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I indicate that had you pleaded not guilty I would have sentenced you to a head sentence of 5 years and 9 months with a non parole period of 4 years.

(e)   As sexual penetration of a child under 16 is a Class 1 offence, you will be subject to mandatory registration under the Sex Offenders Registration Act 2004. The reporting period is 15 years.