Director of Public Prosecutions v Leivers

[2014] VCC 607

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

AT GEELONG
CRIMINAL JURISDICTION

CR-13-00604

DIRECTOR OF PUBLIC PROSECUTIONS

v

DILLON LEIVERS

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Geelong
DATE OF HEARING:	3 March 2014, 4 March 2014, and 14 April 2014
DATE OF SENTENCE:	29 April 2014
CASE MAY BE CITED AS:	DPP v Leivers
MEDIUM NEUTRAL CITATION:	[2014] VCC 607

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	OPP
For the Accused	Mr D. Gibson	VLA

HER HONOUR:

1       Dillon Leivers, on two separate occasions in September and October 2012, you engaged in various acts of sexual penetration with the complainant. You were aged 19 at the time, and she was, as you knew, 12. You described the relationship between the two of you to the forensic psychologist,  Dr Dillon Gee, as seeing each other, but not boyfriend/girlfriend, as friends with benefits.

2       On the first occasion, having persuaded her to wag school, you took her to your home. There you engaged in a number of acts of digital penetration and sexual intercourse. Some weeks later you met her again, and took her to your grandmother’s house where she spent the night with you. On that occasion you engaged in further acts of digital penetration, and fellatio.

3       Not surprisingly, this led to a police investigation. When questioned, you admitted to having sexually penetrated the complainant in these three ways on the occasions I have identified, and you were ultimately charged.

4       The matter resolved on the day the trial was due to commence, and you have now pleaded guilty to three charges of sexual penetration of a child under 16. Charge 1 is one of digital penetration.  It is representative of 4 such acts over those two occasions.  Charge 2 is one of sexual intercourse. It is representative of three such acts. Charge 3 is one of fellatio. It reflects a single instance of such conduct on that second occasion.

5       Sexual penetration of a child under 16 is a serious offence. It carries a maximum term of 10 years imprisonment.  Although it is a serious offence, for reasons which I will explain, I will not be sentencing you to a term of imprisonment, but will be releasing you on a CCO.  I do so for the following reasons.

6       You were 19 at the time, at law a young offender. You have a measured cognitive capacity commensurate with an individual aged between 8 and 13, and a mental capacity of a child aged between 6 and 14.  That makes you, in terms of cognitive functioning and mental capacity, at best, about the same age as the complainant, but quite possibly, significantly younger than her.

7       You were brought up by your mother from the age of 7, after she and your father separated, and you always struggled.  You were diagnosed with Attention Deficit Hyperactivity Disorder when you were in Grade 4.  Although you were prescribed Ritalin and took it for four years, were assisted by integration aides at school and even spent a term in a special school, you never settled at school.

8       Your aunt Susan Kovachich who gave evidence on the plea said when referring to your age, 19 is not your age, its just a number.  She said mentally that you were more like a 14 or 15 year old, and that you got on better with younger kids. That is consistent with what you said recently to the psychologist when you were being assessed.  You told him that you hung out with younger kids because you could not keep up with kids your own age.

9       After leaving school, after that unsatisfactory experience, your mother arranged some jobs for you, but each of them was short lived. As your aunt Susan explained, you have trouble relating to people, you are unable  to express how you feel, and you respond, particularly to teasing, and bullying, by exploding.

10     Despite your obvious difficulties, by all accounts your mother was loving and devoted to you, and you and your brother were obviously well cared for and well loved by her.  You lived with her, and were very reliant, if not actually dependent, upon her. In addition to the behavioural difficulties that you experienced with the ADHD, you suffered a fall with a fractured skull at the age of 15. You have not been formally tested neuropsychologically but Dr Gee recommends a formal neuropsychological assessment to determine whether you have an acquired brain injury which has resulted in a neurological impairment which underlies or overlays the cognitive difficulties that you have had since childhood. 

11     Although you have not been diagnosed as having an intellectual disability at a level which would have qualified you for assistance under the Disability Act 2006, as Dr Gee pointed out, if you have an over-riding neurological impairment, you may well be eligible for support and assistance under that Act, or for specialised programs under the Community Corrections Order that I am about to place you on.

12     You need some support and assistance in your activities of daily living, particularly in negotiating and managing relationships with people, and in maximising your prospects for employment.  Because of the combination of cognitive and mental difficulties, and the behavioural problems that have led to your difficulty in expressing yourself and your tendency to explode, your prospects of getting employment are much lower than other peoples. What this has meant is that you have much idle time on your hands because you are too old for school and you are finding - understandably - it very difficult to obtain employment or anything else to meaningfully occupy your time.

13     Your mother died earlier this year, not long after being diagnosed with an aggressive, fast-acting cancer. That has been a devastating matter for you and for your brother and for your close family.  You now live with your brother Jordan who is a bit older than you, he is 23, and your aunt Susan - who has always been very close to her sister and to the boys - lives nearby, and obviously keeps a close eye on the two of you.  But she expresses concerns about your ability in coping as Jordan gets older and maybe moves out into a relationship of his own.  The family has to come to terms with how best to enable you to be meaningfully and gainfully occupied and live well and happily and safely.

14     I have been greatly assisted by the careful, sensitive and comprehensive written and oral submissions made by Mr Gibson in the course of the plea and the equally careful, well researched and comprehensive reports provided by Dr Gee and by Mr Bilyk.  Mr Bilyk was the clinical psychologist who you attended for 15 counselling sessions after you were charged.  That was, as I understand it, partly organised through your bail and then paid for under the GP Better Mental Health Program.

15     I accept the opinions as to your level of cognitive functioning and your mental capacity. I accept Dr Gee’s characterisation of the offending as an unsophisticated attempt at intimacy, social connection and sexual exploration in a man with reduced intellectual capacity, deficits in psychosocial knowledge and understanding, limited social connectedness and minimal interpersonal competencies.

16     I accept Dr Gee’s opinion, following his assessment of the risk of future sexual violence using what current research indicates are the best means of prediction, namely a combination of actuarial measures and structured professional judgment , that your current risk of future reoffending is low and  that your offending does not appear to have been driven by antisocial, psychopathic, or paraphilic motives. 

17     It is clear that your risk factors are being without care and supervision and attention and structure around you and having too much time on your hands.  Your other risk factors relate to isolation which relates in part to that and to your difficulties in managing and controlling your temper and relationships.  With assistance and support, many of those things can be managed.

18     I am also satisfied on the materials before me,  that this is one of those rare cases where the principles in Verdins[1] are properly invoked. It is a most unusual case where, not only does it apply, but all six limbs of it do.

[1]Verdins; Buckley; Vo (2007) 16 VR 269.

19     I am satisfied your impaired mental functioning - particularly your impaired cognitive capacity, self regulation deficits and depressive pathology - impacted on your social and moral reasoning, your consequential thinking, your insight and your judgment. In my view, this in turn moderates the weight to be given to general and specific deterrence. Dr Gee’s report highlights the need for specialist supports and intervention services which might begin to address some of the causal mechanisms underpinning this aberrant behaviour. He points out that such services would be unlikely to be - particularly given you are not a registered client of Disability Services - available to you in a custodial setting, and he makes the obvious additional point that given your cognitive deficits, you would struggle to benefit from mainstream prison programs.

20     Your cognitive deficits have made it more difficult for you to manage the burden of having these charges hanging unresolved over your head.  There has been greater delay in resolution and finality than might otherwise have been the case, and that has added to the burden.  You exhibit - according to the reports - signs of reactive depression, due to a combination of the consequences of being charged, and the death of your mother.  That response, together with the underlying deficits I have already detailed, I am satisfied would make imprisonment more burdensome for you than it would for somebody without that combination of conditions and they pose a real risk of a worsening of your condition if you were imprisoned.  You would also obviously - because of the matters that I have detailed - be a vulnerable prisoner because of your youth and those deficits and that would make your time in custody more onerous and perhaps much more restricted than it would for others. 

21     I also take into account the fact that the delay in the matter resolving has put you outside the time a youth detention order could have been made.  That delay was in part, as a result of the legal advice from your former lawyers that you should contest the admissions in the recorded interview and contest the charges.  Had the admissions in the record of interview been successfully contested that would have considerably - if not fatally weakened the case against you.

22     The trial was first listed as a contested trial with that understanding of the advice from your legal advisors at a time when you were 20 and had you been convicted at that stage you would have been eligible for a Youth Detention Order.  That trial date was vacated due to no fault of your own but due to the serious illness of the informant and the next available court date was at a time when you had turned 21 and therefore had passed that threshold.

23     In assessing the seriousness of the offending, I was assisted by the references made by Mr Gibson in his submissions to the decision of the Court of Appeal in Clarksonv R.[2]  I accept that “consent” is never a mitigating factor in offences such as these, and that in accordance with the principles set out in Clarkson, it is the circumstances in which consent was given that is relevant to assessing the gravity of the offending and your culpability.

[2][2011] VSCA 157.

24     I note the following factors of relevance:  first, the chronological age difference here, 12 to 19, must be assessed not only by reference to the actual chronological difference, but the actual difference or rather similarity in the cognitive and mental capacity of you and the complainant.  The chronological age differences can still - particularly for the complainant, create a power imbalance - to her you were a 19 year old - but significantly, it was not one of which you were aware, or sought to exploit.  Again, I am fortified in coming to that view by the evidence that you do get on better with, and tend to gravitate towards younger people because you cannot get on or keep up with people your own age.

25     It is relevant to note that the complainant herself said from the start the contact was consensual, and that she has declined to provide a Victim Impact Statement.  Both she and you appear to have suffered opprobrium in your social circles, and she may well now, and when she is older, regret having engaged in the activity, and I take that into account.  But there is no evidence the complainant has suffered harm beyond what can be expected in most cases of this sort where there has been a consent although in the circumstances I have explained, from somebody who is legally too young to consent.  As you now understand, having been through this difficult journey through the court system, even if somebody underage says, "Yes" that the law understands that people do not always have the maturity and the understanding to go with their physical maturity to make the consent a true consent, that is, something that they are happy to live with and not regret very shortly thereafter. 

26     Although your plea of guilty was not entered until the first day of the second listing time of the trial, I take it into account in your favour and treat it not as a very late entered plea of guilty but one that, in the circumstances, deserves a greater weight than a plea entered at the last minute normally would.  Not only because of your susceptibility to accepting the advice given to you by your legal advisors but because of those other circumstances including the legitimate pursuing of whether you had a legal basis for excluding the admissions and the effect that that might have had on the strength of the prosecution case.

27     It is clear that your plea had significant utilitarian value.  It vindicated the truthfulness of the account given by the complainant and it spared her - an obviously embarrassed and reluctant witness - from the ordeal of having to give evidence, to face up to her own immaturity and stupidity and spare her the indignity of perhaps being forced with being confronted by your lawyers with the suggestion that she was lying or exaggerating about all or part of her evidence.  In those circumstances your plea of guilty deserves considerable weight for the sparing of the victim of that. 

28     I also accept, in the circumstances, and particularly as supported by the information from the psychological reports, that the plea of guilty is an indication of your remorsefulness, of your acceptance that what you did was wrong and that even though the complainant consented that you should not have taken advantage of her youth and immaturity and that you must confine your sexual relationships to people who are legally, as well as mentally, old enough to say, "Yes" in a way that the law accepts as binding. 

29     I should also add that I was considerably assisted by the submissions of Mr Cordy who, having evaluated the material presented on the plea and the circumstances in which the offending occurred, exercised what I thought to be considerable independence of judgement and his considerable experience and measured judgment was of great assistance.

30     In all of the circumstances, this is a case where options for punishment other than imprisonment are properly open.  In fact, indeed, in my view, it would be a travesty to be forced to imprison you for this offending.

31     As it stands, I consider the fact that I must direct you to be placed on the Sex Offenders Register for life a travesty.  Yours is not the sort of case for which legislation like this was designed.  Its purpose should be to protect the public in circumstances where a sentence or other orders available to a court through other legislation cannot achieve its end. 

32     At the time the Sex Offender Registration Act 2004 was enacted there was no provision for the making of extended supervision orders for those people who were rightly regarded to be a serious risk to the sexual safety of the public even after they had finished serving their sentence. 

33     The Working With Children Legislation has also been passed since the Sex Offenders Registration Act2004 was passed and that provides again specific and targeted measures to protect children from those whose work brings them in to contact with children, and who have a previous history of sexual offending.

34     These are indeed tailored measures to address specific risks.  Each requires the need for judgment about the risk in the particular case and each involves considerable exercise of discretion.  By contrast, I have no discretion here  by reason of the charges to which you have pleaded guilty you are mandatorily placed upon the Sex Offender Register for life.  I would hope that were parliament considering such a scheme now knowing that extended supervision orders and working with children legislation is in effect, with that more targeted focus, that if it were starting afresh, it would not require a court to place a person in your position on the register for life when it is not actually necessary for its stated purposes of protection of the public.

35     I cannot however, take that into account as punishment.  I am specifically precluded from doing so but I feel greatly constrained by the arbitrary unfairness of that legislation and the impact that it may well have on you.

36     For the reasons that I have already indicated I propose to place you on a Community Corrections Order.  I am going to make that for a period of two years, Mr Leivers.  I know that might sound like a considerable time but I think it is the shortest time that is appropriate having regard to your circumstances and your needs.  The shortest time, therefore that will achieve the ends both of acknowledging the wrong of what you have done, imposing just punishment, of condemning what you did, denouncing it as the law requires, of deterring people who think that they can have sex with a 12 year old from doing so and, in so far as is necessary from deterring you if you are tempted with an underage girl again. It also achieves that end because of the conditions that I am going to impose upon it of - I think - providing a means of addressing the reasons for the offending and therefore, looking at the protection of the community.  It also reflects the fact that you should be regarded as having good - although guarded, because of your deficits - prospects for rehabilitation. 

37     I am going to impose some unpaid community work.  Parliament makes it clear that unpaid community work is the punishment part of a Community Correction Order and there is a need for you to have some part of the order that reflects punishment but I am going to direct that up to 50 hours of that time, of that unpaid community work, can be taken into account by your participation in programs that I am going to direct.  So, there is 100 hours of unpaid community work in it but you can work off up to 50 hours of that by participation in the programs that you are directed to do.

38     I am going to direct that you be assessed for eligibility for and participation in a sex offender treatment program.  One that is designed with your cognitive and other deficits in mind.  I am also going to direct that you be assessed for participation in programs to improve your literacy because that will help you with your job prospects, for drug and alcohol treatment and management because clearly, when you have got time on your hands you have shown in the past you are tempted to drink and you are tempted to use illicit drugs and you get into trouble.  Also, because of the material before me, your own understanding of this and your aunt's description of it, anger management courses, programs that will help you when you “blow up.” I was heartened to read in the report of Mr Bilyk that you did very well in the programs that he took you through in showing you how you could slow down and find yourself in a position where you did not blow up but you could negotiate your way out of trouble.  So, some follow up or top up work on that to build on what you have already achieved.

39     I am also going to direct programs for psychological and psychiatric assessment including neuropsychological assessment because of the matters that were raised by Dr Gee about his concerns about the depression following from the death of your mother and also because of these charges hanging over your head and what appeared to be some underlying depression even before that.

40     All of those programs, there are a lot of them, are designed to assist you in your rehabilitation, to assist you to keep out of trouble in the future.  So, I want you to understand that they are - although it may sound a lot - they are all programs designed to assist you and therefore assist the community and 50 hours of all of those programs will be counted against that time for the unpaid community work.  But I want you to have some of that time actually engaging in unpaid community work because if you can be assisted to find employment through having to turn up at the time you are told to and having to do the work that you are told to, under a CCO, that could stand you in very good stead for getting into proper paid employment at the end of that.  So, again, although parliament sees it as a punishment, I see it also as something that could well assist you in your rehabilitation. 

41     Because of your complex needs and because although your brother and your aunt are obviously very caring and very committed to you, the loss of your mother and her support and guidance has obviously been significant.  So, I am also going to impose a condition of supervision so that you have got somebody from the Office of Corrections supervising you in what could be a difficult time for you as you negotiate your time once you know the charges are disposed of and you are not going to gaol but you have still got to live your life.

42     I am also going to impose a condition of judicial monitoring. I am doing that because I just think that it may be more helpful if you can come back before me on a regular basis, report to me how you are going and if there are problems in negotiating things with Corrections through this Community Correction Order.  Judicial monitoring is a way of heading things off before they get to an impossible position.  So, instead of you finding that you have had a fight with someone at Corrections and you cannot get on with them and so they are going to breach you or if Corrections are having trouble finding the right program for you quickly enough for you to be able to participate in it, that will come back before me and we can do some problem solving and sort that out before things get out of hand.  There are a lot of conditions but I want you to understand the reason for them and so that, I hope, will help you engage in the way you have been with the help you have been given to date to try and keep yourself out of trouble and to give yourself a better start into your adult life.

43     You have been assessed for suitability for that Community Correction Order.  You have been found to be suitable with all of those conditions - they have all been recommended and you have signed a form with them indicating you understand those conditions and you are prepared to consent to such an order; is that still the case?

44     OFFENDER:  Yes.

45     HER HONOUR:  Can you now stand please, Mr Leivers?  I will formally sentence you.

46     Dillon Leivers, on three charges to which you pleaded guilty you are convicted.  You are ordered to serve a Community Correction Order for a period of two years.  That order commences today and it ends on 28 April 2016.

47     You must attend the Melton Community Correctional Services Office by 1 May 2014 at 4:00PM.

48     OFFENDER:  I have an appointment tomorrow as well. 

49     HER HONOUR:   Excellent.  Well, you go there then tomorrow.  You must attend either tomorrow or by 4:00PM on 1 May.  You have got these other mandatory or compulsory conditions that apply to all Community Corrections Orders: You must not commit any offence punishable by imprisonment for the period that you are on the order;  You must comply with all obligations or requirements prescribed by Regulation 17 of the Sentencing Regulations,  That means you cannot be impaired by drugs or alcohol when you are doing any of your Community Correction Order and you must submit to testing if they ask you to for drug or alcohol; You must report to and receive visits from the Secretary or Delegate; You must let a Community Corrections Officer know within two clear working days if you change your address or your job; You must not leave Victoria without first getting permission to do so from the Secretary or delegate; and you must obey all lawful instructions from and directions of the Secretary or delegate.

50     In addition to those terms that apply to everyone, the special conditions for you are these:  You must perform 100 hours of unpaid community work over the period of two years of the order as directed by the Regional Manager.  50 hours of treatment and rehabilitation programs satisfactorily undertaken by you are to be counted as hours of unpaid community work for the purpose of this condition.  If you fail to comply with the community work or condition of your order the Secretary can give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act 1991.

51     You must be under the supervision of a Community Corrections Officer for a period of two years.

52     You must undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager. You must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the Regional Manager.

53     You must undergo a mental health assessment and treatment including but not limited to mental health psychological, neuropsychological and psychiatric assessment or treatment in a hospital or residential facility if directed by the Regional Manager.

54     All that means is you have got to attend any assessment that you are directed to and if they direct you to go to a particular place for that for assessment or treatment, you have got to do that.

55     OFFENDER:  OK.

56     HER HONOUR:  You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager and that includes the sex offender treatment program designed with your cognitive and other deficits in mind, literacy, and anger management programs.

57     Under the judicial monitoring condition you must attend for review in three months, on 5 August 2014 at 9:00am in the County Court at Melbourne - not Geelong - and then to attend for review every three months thereafter or such extended period as I direct as the order continues.

58     Do you understand the effect and conditions of the order?

59     OFFENDER:  Yes.

60     HER HONOUR:  Do you consent to it being made?

61     OFFENDER:  Yes.

62     HER HONOUR:  Thank you.  I will ask Mr Gibson to bring that down to you so you can sign that.  Whilst he is on his way down I have also been asked to make an order that you undergo a forensic procedure for the taking of a scraping from your mouth to go on the DNA database and I must warn you that if you do not consent to the taking of that sample - you do it by rubbing a little cotton bud thing on the inside of your mouth until a sufficient sample has been obtained - if you do not co-operate in the provision of that, the police are authorised to use reasonable force in order to obtain that sample and they may well use the more invasive method of getting a forensic sample, that is, taking a blood sample. Do you understand that?

63     OFFENDER:  Yes.

64     HER HONOUR:  Because you are not being sentenced to a term of imprisonment there is a very complicated time frame for the time that you have to attend at the Melton Police Station for doing that.  You have got to wait for a month in order for the appeal time to expire.  If you do not appeal and if the prosecution does not appeal then you have got to turn up to the police station to provide that sample in the next month but I am sure Mr Gibson will explain that to you again after we finish the sentencing process.  You can take a seat while Mr Gibson comes down to you with the order.

65     Just one other thing before he comes down.  I have already mentioned the fact that I must place you on the Sex Offender Register for life.  I am required to give you a document setting out your reporting conditions under that Act.  The first thing I have to tell you about that is that you must report to the police within seven days of today - the making of this order - and I am also going to ask you whether you will sign this document which is a receipt indicating that you have been provided with a copy of the conditions.

66     OFFENDER:  Yes.

67     HER HONOUR:  You do not have to sign it because the court record will show that you have been given it.  It is just an extra way of recording that it has been given to you but Mr Gibson again will explain that to you as he takes it down.  Thank you.

68     Mr Cordy, I think our video link is about to disappear.  Everyone has told me I may have it until 4:30 so can I just ask you while this is being done whether the orders I have pronounced reflect what I said I intended to do?

69     MR CORDY:  Yes, I believe they do, Your Honour.

70     HER HONOUR:  Anything further from the Crown?

71     MR CORDY:  Nothing further, no.

72     HER HONOUR:  If you are able to stay to the end that is very nice but if you get summarily cut off I will understand.

73     MR CORDY:  I will probably find myself locked in the building.

74     HER HONOUR:  I would not want to wish that on you.  Thank you again for your assistance, Mr Cordy.

75     MR CORDY:  Thank you, Your Honour.

76     HER HONOUR:  Thank you, I note that you have signed the receipt acknowledging the conditions of the Sex Offender Registration Act2004 have been provided to me.  I have countersigned the Community Corrections Order.  When a copy of that has been made and provided to you, Mr Leivers, you will then be free to leave the court.  I look forward to hearing a good progress report from you and from Corrections when you come back in August of this year.

77     Thank you, Mr Gibson too for your assistance. 

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