Director of Public Prosecutions v Leitch (a pseudonym)
[2019] VCC 1952
•25 November 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SIENNA LEITCH (a pseudonym) |
---
| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 October 2019 |
| DATE OF SENTENCE: | 25 November 2019 |
| CASE MAY BE CITED AS: | DPP v Leitch (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1952 |
REASONS FOR SENTENCE
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Legislation Cited:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Piggott | |
| For the Accused | Ms E. McKinnon |
HIS HONOUR:
1Sienna Leitch[1], you have pleaded guilty to three charges. The first charge is an offence of grooming for sexual contact with a child under 16 and has a maximum penalty of ten years' imprisonment. The second charge is an offence of sexual assault and it has a maximum penalty of ten years' imprisonment. The third charge is an offence of sexual penetration of a child under 16. It has a maximum penalty of 15 years’ imprisonment. This charge represents two occasions of the same offending, namely, the complainant introducing his fingers into your vagina.
[1] ‘Sienna Leitch’ is a pseudonym.
2Charges 2 and 3 are standard sentence offences. Later I will describe the effect of the standard sentence scheme upon your sentences for these offences.
3Since I will sentence you to imprisonment on Charges 1 and 2, for the purposes of Charge 3 you must be sentenced as a serious sexual offender. Again I will describe how that works for you.
4At the time of your offending the complainant was 15 years old.
5You have no previous convictions or findings of guilt.
6The prosecutor read out a detailed explanation of the circumstances of your offending. Much of what I say now repeats what she read out.
7You met the complainant through your daughter. He was her boyfriend. In March 2018 you started communicating with him after your daughter and he broke up. Your contact with him was unexpected. You said you had concerns about his mental health. To use the words of the complainant, your communications were a 'pretty broad umbrella of things' and 'sometimes it would turn into like sexual things'. Again in the words of the complainant you were texting him 'most days, practically every day, practically all the time, like during school, when I was at home, when she was at work, when she was at home'.
8In the messages, the complainant described being emotionally distressed because of his relationship with his parents. You offered him advice. You arranged for him to see a psychologist which he did on two or three occasions.
9From June 2018 the frequency of your communications increased dramatically. Between 19 June and 10 August, the two of you exchanged 14,885 text and chat messages, a number of emails and met face to face on a number of occasions.
10A significant amount of these messages contained conversations about sex, sexual acts, sexual fantasy and pornography. The messages also include conversations initiated by both of you containing arrangements for you to pick the complainant up from places other than his home to avoid his parents knowing. You made a significant number of disparaging remarks about his parents, particularly his father.
11On Sunday, 7 July 2018, in mid-morning you picked up the complainant around the corner from his home and drove him to Lake Mountain near Marysville.
12The trip was for the complainant's birthday and you bought food and cider for both of you to consume. You also gave him a book, scarf and bath bombs. You allowed the complainant to drive your car despite the fact that he does not hold a learner permit and he reached speeds of about 110 kilometres per hour while driving.
13You also gave him four bottles of cider which he drank. You, yourself, did not consume any alcohol. While at Lake Mountain you and he played in the snow for about five minutes. However, as you did not have snow clothing you both got cold and returned to the car.
14You then drove around listening to music, bought a pizza and drove around some more. You then travelled back to Melbourne and you dropped him at his home at about 11 pm.
15On Saturday, 14 July, the complainant's father disabled the SIM card associated with his mobile phone service. He did this as he was concerned about the high level of activity on the phone, the times that he was texting and the high level of activity towards two numbers.
16While the SIM was disabled you and the complainant continued to communicate primarily via email. On Friday, 20 July 2018, you purchased for the complainant a new SIM from Coles. The SIM was connected to the mobile phone service and the service was reconnected and was active from the following Sunday.
17On Friday, 27 July 2018, you booked accommodation at Bainbridge Cottage which is a short stay holiday rental property in Wheatsheaf. The booking was made for Friday, 31 August and Saturday, 1 September. In the days leading up to and the days after the booking you and the complainant had extensive conversations by text making arrangements to go away.
18You asked the complainant to purchase marijuana for you and him. You describe purchasing alcohol for cocktails that you'd planned for both of you to drink. You booked a group massage and you and he discussed getting dressed up, having candlelit dinners and sleeping in the same bed.
19On Friday, 3 August 2018, you and the complainant had plans to go to Pixel Alley in Fitzroy before going to Hotel Jesus also in Collingwood for dinner. On that day you picked the complainant up from around the corner from his residence and you travelled to Smith Street in Fitzroy and attended Pixel Alley. Since parking was too expensive on Smith Street, instead of attending Hotel Jesus as planned, you drove yourself and him to the St Kilda area.
20You and the complainant attended the Treehouse Lodge which is located in Balaclava. You and he ate and you purchased for the complainant some alcohol. After eating, you and he travelled to St Kilda pier. While on the pier you danced together and also had a tickle fight which resulted in you rolling around on the ground with him. You then drove the complainant home and dropped him off on Saturday, 4 August at about 2.26 am.
21Later that day the complainant sent text messages to you apologising for tickling and kissing you and pinching your nipples. You stated that you were not scared of affection and there was no need to apologise. On the same day between 8.09 and 11.04 in the morning you conducted internet searches using your Apple iPhone on a variety of topics around physical intimacy and actions that show that a male is interested in a female. The prosecution opening gave examples of those messages but I will not recite them now.
22On Thursday, 9 August, you went out to dinner with a friend at the Vegie Bar which is in Footscray. The complainant who was at home with his parents and brother, climbed out of his bedroom window and snuck away. He walked to this address in Fitzroy and waited for you over the road from the bar.
23At about 11 pm, you left the bar and the complainant crossed the road and greeted you. You then walked to your car which was parked in Leicester Street Fitzroy. You and the complainant went for a drive and spoke about the complainant's concerns regarding his home life. You then drove around for about an hour stopping at a 7-Eleven to buy donuts and something to drink before heading back to Fitzroy. As you approached Fitzroy the complainant became upset as he did not want to return home.
24On Friday, 10 August, at about 1.45 in the morning you parked your car in a car park near the Melbourne Museum. You and the complainant sat in the car speaking and listening to music. After a short period of time the complainant, who was sitting in the front passenger seat, leant over and kissed you on your left cheek. A few moments later the complainant leant across and attempted to kiss you on the cheek again. On that occasion you turned your head to the left which caused him to kiss you on the lips. After that kiss you said something to the effect of, 'We may as well do it properly now' and you and he began to kiss more passionately.
25You and the complainant spent approximately an hour, open kissing with tongues. During that time the complainant moved from sitting in the passenger seat onto the centre console, onto your lap and then back onto the centre console.
26These various acts which I have described in detail constitute Charge 1 which is grooming for sexual contact with a child under the age of 16.
27During the hour that I have just referred to, the complainant moved from the passenger seat to be sitting on the centre console. Using his middle and index fingers he penetrated your vagina. He asked you if you were okay with his penetration and you said, 'Yeah'. This comprises the first occasion of Charge 3 which is sexual penetration of a child under 16.
28The complainant then asked you if you would like him to play with your breasts and you said you would. With his right hand he pinched and tweaked your breasts, first over your bra and then underneath it, leaving you with bruising. These actions comprise the second charge which is sexual assault of a child under 16.
29At no stage did you attempt to stop the complainant from touching you or say anything to him to indicate that you did not want him to either penetrate, kiss or touch you in the way that I have described.
30At about 4.45 am, you asked the complainant what time it was and he told you and as it was late you drove from the area. You stated that you were supposed to be home ages ago and would say to your family that you were late because you had to drive a friend home. As a result of the kissing that you and the complainant engaged in your lips were swollen. You drove to a 7-Eleven in Fitzroy and asked the complainant to go into the store to buy you an icy pole so that you could ice your lips and attempt to make the swelling go down. You then dropped the complainant off in the vicinity of his house and you drove home.
31On Friday, 10 August, you and the complainant exchanged a series of text messages discussing what had occurred the night before and earlier that morning. You and he discussed how what had occurred was consensual and complimented each other on each other's kissing.
32The prosecution opening gave examples of those messages but again I will not read them out. From about April of last year the complainant's parents saw a deterioration in their son’s behaviour. On 28 June last year the complainant was suspended from his school and at that stage his father wanted to in fact suspend his SIM card.
33His parents looked through his call logs and they saw a large number of calls from two particular numbers. His mother checked both numbers and the complainant explained your number to his parents as belonging to a girl he had met at Northcote High School.
34Nevertheless, his parents kept an eye on his messages. After his father saw a message from you on 10 August his mother finally spoke to you and on
11 August the complainant's parents reported their concerns about your contact with their son to the police.35Despite your awareness of the concern of his parents you met the complainant the next day. You picked him up in your car at St George's Road and drove away from the city. You drove to a park and both of you walked. You then drove to a shop, bought fish and chips which you ate together and then drove around some more before parking. You and he began kissing and he then penetrated your vagina with the fingers of his left hand. This is the second occasion of sexual penetration of a child under 16 years which is the third charge.
36After this you suggested doing more the next time that you and he met. You then drove towards the city kissing him repeatedly and dropping him off in Reservoir.
37On Monday, 13 August, you emailed the complainant telling him you were required to go to a police station to be served with an intervention order prohibiting you from contacting him. You consented to the making of the intervention order where you were the respondent.
38Police investigators examined the complainant's mobile phone and identified 6206 messages of particular interest.
39On Friday, 30 November, police members armed with a search warrant searched your home and seized a laptop computer, a mobile phone and an iPhone. You were arrested also. You were interviewed that day and made no comment to the questions asked of you. You were charged with two offences and bailed.
40Your laptop computer contained a number of professional documents including your CV and copies of job applications which demonstrate your experience and qualifications as a social worker. They also show you have a significant understanding of the vulnerabilities and cognitive abilities of young people.
41Between August and December last year the complainant was reluctant to assist the police investigation because he felt neither he nor you had done anything wrong. However, on 20 December last year, he was again interviewed and as a consequence of what he said you were charged with the extra offence, that is of sexual penetration.
42You attempted to delete evidence of your contact with the complainant. You even drafted and redrafted a statement in which you alleged the complainant sexually assaulted you.
43These charges were initially listed on 25 January this year and there was a committal mention of the charges on 8 April and you were committed and subsequently arraigned on 14 June.
44The complainant and his parents made victim impact statements. The complainant read his statement in the courtroom and he is now 16. The complainant still cannot understand the offences because he trusted you. He was confused and now lacks the confidence he once had.
45Caught between his parents and you he stopped believing those persons he had previously trusted. He believed they would abuse his trust. He could not trust his own thoughts and was anxious all the time. He felt everything was pointless and anything good he did, did not stay for long. He experimented, even with drugs and alcohol because he felt he had nothing to lose. He experienced a very bad anxiety attack, had awful flashbacks and shook uncontrollably. He felt unsafe. He felt sad, used drugs and his friends distanced themselves from him. He was not pleasant to be around.
46His relationship with his parents changed, he felt his parents did not know him, even though he appreciated they were trying. He felt no one knew him now or understood. His relationship with his girlfriend broke down, he projected his issues and hurt onto her even though they now remain friends. More recently, he started to feel like himself again, accepting what happened and that he is a victim in that he has realised how much he has been hurt, manipulated and betrayed.
47At school hurtful rumours were spread about him. He felt hated. He felt unable to defend himself. He feels his life before these events has gone. He feels very bad about what happened and is getting help to get through his experiences. He is very anxious and finds relief in music and relating to characters in films and in comics.
48The complainant's father made a victim impact statement. Until early to mid-2018 he says his son was a popular and successful student and related well to both sides of his family. Then things went wrong at home and at school and by mid-2018 he was asked to leave school. His son's initial reaction was that anyone who opposed this relationship was an enemy, including his parents. His behaviour became poor, he ceased his involvement in competitive sport, ceased training and gym work, lost his job at McDonald's, threatened and assaulted his parents. On numerous occasions he was found by his parents in a disorientated state and numerous visits to the Children's Hospital were made, usually due to drug abuse.
49During 2019 his son became largely alienated from the family, close and extended. His parents have sought treatment and counselling from psychiatrists, psychologists, doctors, other health workers, drug counsellors and youth workers. Progress has been slow and difficult with many lapses. There are now glimmers of hope. His father feels he has lost his son over the past 18 months and has been denied his role as a father. Rather than advise and encourage he now supports and comforts.
50His mother also made a victim impact statement. She says that from an early age her son was a vulnerable child needing special assistance. The offences have caused considerable damage to the parents' relationship with their son, despite their great love for him. For a long time their son acted as though they were the enemy, disowning them as parents to others.
51She described his leaving home in late-2018 aged 15 and seeing him often unkempt, drug affected and aggressive. She described the great effect upon her, physically and mentally, of their difficulties and attempts to preserve his privacy. She experiences great sadness.
52In August 2019 her son returned home. They are repairing their relationship. He is now attending school. The path to recovery has its lapses but he has hope, as do his parents. His mother thinks she will always feel sadness because the crime was sexual and occurred at the start of his sexual life. They will support their son throughout his life as they expect the effects to revisit him. Both parents hope that time, age and love will help him to feel better about himself and he will find enjoyment and purpose in life.
53Turning now to you. You are now 53. Your parents migrated from Italy. You are the eldest of three children. Your sister died within three months of her birth. You are married and have been married for 21 years. You have two children, a son aged 18 and a daughter aged 16. Your mother died when you were six. Your father was an alcoholic. He was abusive to you both physically and emotionally. His abuse prevented you from completing Year 12.
54At 18, you were admitted to a psychiatric facility as an inpatient, spending several months there. You were diagnosed with two then recognised psychological disorders: hysterical personality disorder; and borderline personality disorder. You have struggled with your mental health for many years, seeking professional help along the way.
55At the time of your offending you were under stress at work, you drank heavily, so much so that Patrick Newton, a psychologist, diagnosed you with alcohol abuse disorder of moderate severity but in early remission.
56Presently, you suffer from a major depressive disorder. You are highly qualified, holding degrees at Bachelor and Master levels together with three diplomas and a Certificate IV in Life Coaching. You started a life coaching business in 2011. You used your skills as a social worker until early December 2018 when your employment as a case manager with a well-known community service organisation ceased.
57Four persons, three friends and your husband, have written about your otherwise excellent character. To quote one, ‘you are a kind, loving and compassionate person’. Another, a work colleague and your husband noted the stress you experienced at work between 2016 and 2018. Your husband and others noted the distress caused by the death of your father; each noted your remorse and your fragile mental state.
58Your future employment as a social worker must be doubtful in light of these offences. I say doubtful because your friends describe you in such terms, that such future employment may not be denied completely. You have been active in community service in the past. You campaigned to open a high school in Coburg, the High School for Coburg campaign, which proved successful. You have worked at the Wesley Do Care, a social inclusion program for the elderly and you have taught English to new migrants at the Adult Migrant Education Service.
59You did not help the police when interviewed. Although, you did consent to the making of the intervention order against you. Initially you tried to shift the blame to the complainant, however you have completely retreated from that position.
60You have entered pleas of guilty at an early opportunity. These pleas have spared the complainant, his parents and others from giving evidence. In the victim impact statement the complainant's mother was fearful of the effect upon her son of giving evidence in a trial. It also has the effect of assisting the course of justice by avoiding a lengthy trial. These pleas of guilty entitle you to a significant discount on the sentence I would otherwise impose if you had not pleaded guilty and had been found guilty after a trial.
61You are remorseful for your offending. This emerges very clearly from what you tell me in your letter, your pleas of guilty and what you have told others, including those asked to see you by your solicitors.
62Your counsel relies on two of the six propositions stated by our Court of Appeal in a case which is known as R v Verdins. That is, your impaired mental functioning is relevant to sentencing. First, your impaired mental functioning could mean that a sentence of imprisonment would weigh more heavily on you than it would on a person in normal health and; secondly, where there is a serious risk of imprisonment having serious adverse effect on your mental health.
63As I said before, you have suffered from mental illness since, at least, you were 18 and you were admitted to a psychiatric unit as an inpatient. Over the years you have received treatment. For example, your husband described the events in 2006. Between 2016 and 2018 you experienced a great deal of stress in your workplace and you began drinking alcohol heavily.
64Danny Sullivan is a forensic psychiatrist of considerable experience. He is the executive director of Clinical Services at Forensicare. He saw you on 30 August of this year at the request of your solicitors. He diagnosed you as suffering from a major depressive disorder which is recurrent. The symptoms of which are presently, according to him, mild to moderate, and have been exacerbated or made worse by these proceedings. Dr Sullivan considered the features associated with your offending to be poor self-esteem, poor concept of professional and personal boundaries and a misguided effort to assist the complainant.
65He does not express a view as to the likelihood of you re-offending.
Dr Sullivan said your self-esteem is fragile and you are vulnerable to deterioration in your mental health. He said it is likely that imprisonment will weigh more heavily on you because of your recurrent depressive illness and the likelihood this will be exacerbated by imprisonment.66He considers you require ongoing antidepressant medicine and would benefit from further psychological assistance. In custody he believes you can be assessed and treated by the newly formed Forensic Intervention Services of Corrections Victoria.
67Between 19 June and 19 September this year you attended a sex offender treatment programme on 11 occasions and possibly a 12th on
3 October. This programme was conducted by a counsellor called Geoffrey Burrows. In a report he says you positively engaged in treatment, made good progress and would benefit from further treatment which is something you want to do.68On 3 November of this year, Patrick Newton, a psychologist whom I have already mentioned, saw you at the request of your solicitors. He also diagnosed you as suffering from a recurrent major depressive disorder, the severity of which he said was mild. Despite its mildness he felt the disorder was significant and required treatment. He explained how your depressive disorder influenced your behaviour towards the complainant.
69Notwithstanding your treatment with Mr Burrows and your initial progress,
Mr Newton saw the need for further treatment in two areas: one area relating to offender specific counselling; and the other in relation to mental health. The former would reduce the risk of you re-offending while the latter specifically concerning the abuse you received as a child.70Mr Newton discussed your risk of re-offending. Ultimately he considered at present you are unlikely to fall, as he put it, in the “low risk” range. As to the effect upon you of imprisonment, Mr Newton said:
'From my area of expertise I would simply reiterate my observations that the factors which contribute to her emotional turmoil are so intense and deep-seated that it is likely that she will be able to resolve them only in the longer term. As a result, Ms Leitch would be expected to suffer ongoing mood disturbance at levels which are greater than those typically experienced by the average prisoner, and to be vulnerable to be more frequent episodes of depression than would a prisoner not afflicted with her pre-existing problems. To this would be added the opprobrium attached to her offending, her age, and her naivety to the prison environment. The factors would combine to suggest Ms Leitch's experience of imprisonment is likely to be somewhat more onerous than that of a typical prisoner.'
71The two propositions relied upon by you from the case of R v Verdins apply to you. In your case they tend to overlap. You are likely to experience a reoccurrence of the disorder diagnosed by Dr Sullivan and Mr Newton. As
Dr Sullivan says, imprisonment will be harder for you to cope with because your disorder will reoccur and, secondly, imprisonment will worsen the effects of the disorder, the principal symptoms being depression and anxiety.72Imprisonment is difficult for anyone. In your case it would be much more difficult. This is a significant mitigating factor.
73Reading the reports of Dr Sullivan and Mr Newton it is clear why none of the other propositions stated in R v Verdins were relied upon by your counsel because there is no causal link between your offending and the psychological disorder which you experience.
74Charges 2 and 3 are standard sentence offences. Charge 3 is also a representative offence in that it represents two occasions of the same behaviour. Where an offence is a standard sentence offence, the standard sentence for that offence is the period stated as such. For Charge 2 it is four years' imprisonment and for Charge 3 it is six years' imprisonment. The standard sentence is the sentence in the middle of the range of seriousness for that offence after taking into account only the objective factors affecting the relative seriousness of the offence.
75The objective factors affecting the relative seriousness of an offence are to be determined without reference to matters personal to you or to a class of offenders and wholly by reference to the nature of your offending.
76Under sub-s.2 of s.5 of the Sentencing Act 1991, I must have regard to
12 factors in sentencing you, one of which is the standard sentence for the offence. No one factor has dominance over another. Similarly, the standard sentence does not occupy a special place among those factors. It represents a guide post, it is not a starting point from which a sentence is fashioned, whether a longer sentence or shorter sentence than the standard sentence. It does not affect the process of instinctive synthesis which I must undertake to determine the appropriate sentence for you. It is, as I say, a guide post in much the same way as the maximum sentence for an offence is a guide post.77The Crown referred me to the sentence of Champion J in R v Brown and the propositions it sets out.
78In relation to current sentencing practice, which is another factor I am obliged to take into account, I was not referred to any sentence given after the start of the standard sentencing scheme except for the sentence in Director of Public Prosecutions v Moulden (a Pseudonym).
79Since I will sentence you to imprisonment on Charges 1 and 2, then in relation to Charge 3 I must sentence you as a serious sexual offender. In determining the length of the sentence of Charge 3, first, I must regard the protection of the community from you as the principal purpose for which the sentence is imposed. Second, I may also impose a disproportionate sentence to achieve that purpose, however, the prosecution does not seek that kind of sentence and I consider it would be inappropriate in any event. Third, the sentence on Charge 3 must be served cumulatively upon any uncompleted sentence of imprisonment imposed on you today unless I direct otherwise. The prosecution again does not seek such cumulation and again I agree that that is the correct approach bearing in mind the principle of totality.
80In relation to the representative charge, your counsel submitted there are two aspects of the representative charge. First, it represents the absence of a mitigating factor since you cannot claim the offence was an isolated event. Second, I must look at the conduct represented by the charge in order to judge the offending in its full context. The nature of the representative charge has been recently considered by our Court of Appeal in a case called Crouch v The Queen.
81Sexual penetration of a child under the age of 16 is an offence created by s.49B of the Crimes Act 1958.
82I was referred to the judgment of the Court of Appeal in R v Jobling-Mann. In speaking of an earlier section dealing with the same offence the court made this observation which applies in your case:
'It is gender non-specific and its manifest purpose is the protection of young children from the predatory actions of adults.'[2]
[2] [2000] VSCA 3 [2].
83The gender non-specific aspect of the charge was reiterated in another case called Director of Public Prosecutions v Ellis. Other cases in the Court of Appeal have given the reason for the absolute prohibition of sexual activity by an adult with a child under the age of 16. It is designed to protect children from the harm caused by premature sexual activity and by doing so to protect them from their own immaturity.
84The words 'sexual activity' encompasses both the charge of sexual penetration but also the charges of grooming and sexual assault. You have harmed the complainant very considerably. It is demonstrated in his victim impact statement which he read out in court and it appeared clear in doing so it was a considerable ordeal for him. It is also shown in the victim impact statements of his parents.
85One expects the harm to persist for the foreseeable future as the complainant and his family struggle to reverse the damage you have done.
86I accept that you are genuinely remorseful. I accept your prospects of rehabilitation are strong and you are unlikely to reoffend. The degree of unlikelihood is influenced by Mr Newton's unwillingness at present to place you in the category of low risk of reoffending. There is a need for further treatment. I am confident this will occur and will succeed in enhancing your prospects of rehabilitation to the level I have stated and reduced the likelihood of your reoffending to the level of being unlikely.
87Accordingly, there is no need for my sentence to contain any element of specific deterrence. Since you are a serious sexual offender for the purposes of the third charge, the protection of the community remains a relevant consideration, even though in my view you are unlikely to reoffend.
88Cases involving sexual activity between an adult and a child under 16 often raise the issue of abuse on breach of trust or authority. This is especially so where the offender is in the position of a teacher or other somewhat similar position. This was not raised in your case and does not apply.
89The difference in age between you and the complainant is very large. Given your academic and your occupational experience, you should have realised the harm your sexual activity would cause to the complainant and his family.
90Sub-section (1) of s.5 of the Sentencing Act 1991 describes the purposes for which sentences may be imposed. They include punishing you; deterring you and other persons from committing offences of the same or similar character; manifesting the denunciation of the type of conduct in which you have engaged; and protecting the community from you. I have spoken about deterring you, deterring others and denouncing your crimes as very important considerations in framing my sentences. Your behaviour as an adult with a child under 16 simply cannot occur for it does enormous harm.
91On Charge 1, grooming for sexual contact with a child under the age of 16 you are sentenced to a term of 30 months imprisonment. Your conduct represents a serious example of this offence. Over a relatively short period you engaged in intense contact with the complainant leading inexorably to the second and third charges.
92On Charge 2, sexual assault of a child under 16. This is a standard sentence offence, you are sentenced to a term of imprisonment of 12 months' imprisonment. The kissing and touching of your breasts and nipples render this below but near the middle range of seriousness for this type of offence.
93On Charge 3, sexual penetration of a child under 16; this is both a standard sentence offence, representative offence and you are also sentenced as a serious sexual offender. You are sentenced to imprisonment for 36 months, this is the base sentence.
94I will order that four months on Charge 1 and two months on Charge 2 be served cumulatively upon Charge 3 making a total effective sentence of
42 months or three and a half years.95For the purposes of the standard sentence scheme, unless it is in the interests of justice not to do so, I must fix a non-parole period which is at least 60 per cent of my total effective sentence. There is no reason for me to depart from that approach, that is, there is no reason for me to fix the non-parole period of less or more than 60 per cent.
96Accordingly I fix a non-parole period of 26 months.
97I declare that you have served 41 days of pre-sentence detention not including today.
98For the purposes of 6AAA of the Sentencing Act 1991, absent the pleas of guilty I would have sentenced you to 54 months with a non-parole period of
34 months.99The sentences on Charges 2 and 3 are lower than the standard sentences for those offences. I have already set out those matters in reaching the appropriate sentences on the charges including the nature of your offences and the effect of the mitigating factors. In my view the sentences on Charges 2 and 3 are appropriate.
100Under the Sexual Offenders Registration Act of 2004, once sentenced you automatically become what is known as a registrable offender. You must comply with the reporting obligations under Part 3 of that Act and you must do so for the rest of your life.
101Finally as I understand it the prosecution sought a forensic sample procedure, is that right?
102MS PIGGOTT: That's correct, Your Honour. The documentation should have been e-lodged.
103HIS HONOUR: From a defence perspective is there any opposition?
104MS McKINNON: No, Your Honour, there is not.
105HIS HONOUR: I am required by law, Ms Leitch, to give you this warning in relation to the forensic sample or the forensic procedure order I am going to make. That is that I must inform you that a police officer may use reasonable force to enable the procedure to be conducted. That is to obtain a forensic sample from you.
106In relation to the Sex Offenders Registration Act matter, there is a document that your client, Ms McKinnon, will need to sign. If I have my associate accompany you down to her at the rear of the court in order for her to sign them.
107MS McKINNON: If I may approach the dock?
108HIS HONOUR: Would you explain, speak to her following this proceeding, would you explain as best you can the reporting requirements?
109MS McKINNON: Yes, Your Honour.
110HIS HONOUR: The prisoner can be removed now, we will adjourn the court.
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