Director of Public Prosecutions v Lennox Nash
[2022] VCC 2053
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LENNOX NASH (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE ROZEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 October 2022 | |
DATE OF SENTENCE: | 10 November 2022 | |
CASE MAY BE CITED AS: | DPP v Lennox Nash | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2053 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sexual penetration of a child under 16 - Multiple charges - Indecent act with a
child under 16 - Rape - Jury verdict after trial - Young offender - Ostensible consent not a
mitigating factor - Clarkson v the Queen - Breach of trust - High moral culpability –
Presumption of harm - Borderline intellectual functioning - Low-risk category for sexual
offending - Application of Verdins principles to a diagnosis of paedophilic disorder –
Serious sexual offender - Significant degree of concurrency appropriate
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Sex Offenders
Registration Act 2004 (Vic)
Cases Cited: Clarkson v The Queen (2011) 32 VR 361; Edwards v R [2001] WASCA 263; R
v G [2009] 1 AC 92; Verdins v The Queen [2007] VSCA 62; DPP v O’Neill [2015] VSCA
325; R v Porter (No 3) [2022] ACTSC 236; The Queen v MAS [1998] VSC 286; Ryan v
The Queen (2001) 206 CLR 267; DPP v OJA (2007) 172 A Crim R 181; R v Tsiaris [1996]
1 VR 398; Veen v The Queen (1988) 164 CLR 465; Ryan v The Queen [2001] HCA 21;
Director of Public Prosecutions v Dalgliesh [2017] HCA 41; Schembri v The Queen [2020]
VSCA 217; DPP v Smith [2022] VSCA 4; Treloar v The Queen [2020] VSCA 6; R v
Crowley [2009] VSCA 176; Cooke v The Queen [2021] VSCA 70; Adam Rose (a
pseudonym) v The Queen [2022] VSCA 112; DPP v Hum [2022] VSCA 57; Zhao v The
Queen [2018] VSCA 267
Sentence: Imprisonment of 8 years and 10 months with a non-parole period of 5 years and
10 months – Serious sexual offender - Sex Offenders Registration for life
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr F. Cameron | Office of Public Prosecutions |
| For the Accused | Mr A. Hands | Adrian Paull Criminal Lawyers |
HIS HONOUR:
1Lennox Nash[1], on 15 August 2022, a jury of 12 found you guilty of the following offences:
(a) 10 charges of sexual penetration of a child under 16 contrary to s 45(1) of the Crimes Act 1958 (Vic). The maximum penalty for that offence is 10 years’ imprisonment.
(b) 4 charges of committing an indecent act with a child under the age of 16 contrary to s 47(1) of the Crimes Act 1958 (Vic). The maximum penalty for that offence is 10 years’ imprisonment.
(c) 1 charge of rape contrary to s 38(1) of the Crimes Act 1958 (Vic). The maximum penalty for that offence is 25 years’ imprisonment.
[1] A pseudonym.
2It is now my role to sentence you for this offending. The task of a sentencing judge following a jury verdict is clear. The judge is obliged to determine the factual basis upon which the convicted person is to be sentenced. The facts found must not be inconsistent with the jury's verdict and any adverse findings must be made to the criminal standard.[2]
[2] Cheung v The Queen (2001) 209 CLR 1 at 19 [38].
3The circumstances of your offending are described in the Summary of Prosecution Opening dated 6 April 2021 (‘Opening’). In turn, the Opening was based largely on the evidence of the complainant (who is referred to as ‘BM’ in this judgement to protect her identity as a child victim of sexual offending) as recorded in her two VARE interviews and the cross-examination of BM in a special hearing. These were played to the jury and you are to be sentenced on the basis that the jury accepted the evidence of BM as credible, reliable and honest. The following summary is drawn from the Opening.
4You committed these offences between 3 February 2015 and 2 February 2016. You met the victim of your offending, ‘BM’, at a skating centre near Geelong. You were aged between 18 and 19 years old at this time; BM was 12 years old.
5During the period of your offending you were living with your parents and your older brother in Lara.
6You regularly attended the skating centre on Friday and Saturday nights. You had a Victorian driver’s licence and a car, and would often give lifts to other skaters who attended the centre.
7BM also regularly attended the skating centre. Immediately prior to the time of your offending, her father would take her to the centre every Friday and Saturday night; he would normally drop her at 07:30 PM and collect her at 10:30 PM.
8At some time in late 2014, BM’s father began to work in the evenings and was no longer able to collect BM from the skating centre. BM told some of the regular skaters that her father was going to have difficulties collecting her in the evening, and you offered to pick her up from her home and drop her home after she had finished skating.
9On the first occasion that you drove BM home from the skating centre, you parked your car several houses away from BM’s address and hugged her in the car. BM’s sister came out to the front of the address, saw you parked a few houses down, and confronted you. You exited the car and explained to BM’s sister that BM had injured her leg while skating. At your suggestion, BM pretended to have a limp as a result of injuring her leg earlier, and her sister accepted the fabricated story.
10After this time - and with the consent of BM’s father - you began to regularly collect BM from her home and drive her to and from the skating centre on Friday and Saturday nights.
11During this period you gave BM gifts, including a necklace with an angel pendant and a pair of gold earrings.
12You developed a sexual relationship with BM and the charges relate to seven specific incidents of sexual activity from this time.
Circumstances of Offending
First incident – in a car park by the Barwon River
13Initially, you would drop BM directly home from the skating centre at the end of the evening at approximately 10:30 PM. However, on one evening at a time soon after you began to give BM lifts you suggested that the two of you leave the centre early, and you drove BM to a car park near the Barwon River.
14You and BM got into the back seat of the car. You kissed her, encouraged her to pull down her pants and underpants, and penetrated her vagina with your fingers (Charge 1 – Sexual penetration of a child under 16).
15At your encouragement, BM then touched your penis with her hand and masturbated you to ejaculation (Charge 2 – Indecent act with a child under 16).
16After this, the two of you climbed back into the front seats of your car and you drove BM home.
Second incident – in a car park by the Barwon River
17On a subsequent occasion you drove BM to the skating centre, left early, and returned to the car park near the Barwon River.
18You and BM again got into the back seat of your car. You placed your fingers into BM’s vagina (Charge 3 - Sexual penetration of a child under 16) and again, at your encouragement, she touched your penis with her hands (Charge 4 – Indecent act with a child under 16).
19You then instructed BM to lie down. She complied, and you placed your mouth on her vagina and penetrated her vagina with your tongue (Charge 5 - Sexual penetration of a child under 16). You then drove BM home.
Third incident – in a car park by the Barwon River
20Over the following weeks you took BM to the same car park near the Barwon River on a number of occasions. On one of these occasions, you again penetrated BM’s vagina with your fingers (Charge 7 – Sexual penetration of a child under 16) and she rubbed your penis with her hands (Charge 8 – Indecent act with a child under 16).
21You then asked BM to suck your penis. She complied, and you placed your penis into her mouth. After a period you withdrew your penis from her mouth and masturbated yourself to ejaculation (Charge 9 – Sexual penetration of a child under 16).
Fourth incident – at Mr Nash’s home in Lara
22At some stage in the period after this third incident, you invited BM to come to your home in Lara where you lived with your parents and your brother.
23Your parents were not present the first time BM visited your house. On this occasion, you made her some butter chicken and watched television in the lounge room before taking her to your bedroom. You lay on the bed, kissed BM and penetrated her vagina with your fingers (Charge 10 – Sexual penetration of a child under 16).
24You encouraged BM to touch your penis with her hand and she complied (Charge 11 – Indecent act with a child under 16). You then placed your penis into her mouth and instructed her to ‘suck on it’.You later drove BM home (Charge 12 – Sexual penetration of a child under 16).
Fifth incident – at Mr Nash’s home in Lara
25You took BM to your house on another occasion when your parents were home. When the two of you arrived at your house, you introduced BM to your parents as ‘Ash’ and told them that she was 17 years old. You watched television in the lounge room before again taking BM to your bedroom.
26You instructed BM to lie on your bed and penetrated her vagina with your fingers (Charge 13 – Sexual penetration of a child under 16).
Sixth incident – at Mr Nash’s home in Lara
27On a further occasion when you took BM to your home, you suggested to her that the two of you have sex.
28After taking BM to your bedroom, you again penetrated her vagina with your fingers (Charge 14 – Sexual penetration of a child under 16). You told BM that you had a condom and asked her if she wanted to have sex; BM agreed.
29You placed a condom on your penis, placed lubricant upon it, and inserted your penis into BM’s vagina (Charge 15 – Sexual penetration of a child under 16). You were unable to place enough of your penis into her vagina to ‘thrust’. BM told you that she was in pain and asked that you stop having sex. You complied, removed your penis from BM’s vagina and, at her request, later drove her home.
Seventh incident - at Mr Nash’s home in Lara
30On the final occasion that BM attended at your house in Lara, you took her to your bedroom and removed all of your clothing. You sat on top of her chest and forced your penis into her mouth. BM asked you to stop and attempted to physically resist, but despite her protestations, you forced her to perform oral sex on you for approximately 20 seconds (Charge 17 – Rape). BM began to cry and pushed you away, before screaming at you to take her home. You complied and drove her back to her house.
31Shortly after this incident, BM told you that she no longer wished to see you. You asked her to return the jewellery that you had given her - namely, a necklace with an angel pendant and a pair of gold earrings - and she did so.
Complaint
32BM disclosed to her father in around 2016 that you had forced her to perform oral sex upon you. He stated in evidence that he ‘thought she (BM) wasn't emotionally strong enough to deal with it, so we just let it go’.
33On 29 November 2019, BM attended at the Geelong Sexual Offences and Child Abuse Investigation Team (SOCIT) and took part in a videorecorded interview in which she disclosed the offending.
Post-offending conduct
34In January 2020, BM contacted you and asked if you could return the jewellery to her. You drove to meet her, bought McDonald’s together, and returned both the gifts that you had given her and also a pair of earrings that she had left at your house.
35At some time, either on the night that you returned the jewellery or on another occasion, you sat in the car with BM at the end of her street and apologised for verbal arguments that you and BM had. You did not, however, apologise for any sexual offending.
Record of Interview
36On 8 June 2020 you attended at the Geelong Police Station and participated in a Record of Interview. In this interview you admitted that you knew BM and had driven her home from the skating centre on occasion, and you told investigators that you were 19 and BM was 12 years old when you met her.
37You denied all the charged offending and further denied that BM had ever visited your house in Lara. You also stated that you did not remember buying BM any gifts or asking for them back when you cut ties with each other.
38You did admit, however, that you had contacted BM and ‘hung out’ in January 2020.
Objective Gravity of the Offending
39Clearly the most serious of the offences of which you have been found guilty is that you raped BM (the victim). The circumstances of this crime were that you had invited BM back to the house in which you lived with your family in Lara.
40On this particular occasion, you removed your clothing and lay with BM on your bed. She was wearing her underwear. You touched her breasts. At one point you sat on her chest and put your erect penis in her mouth. BM was crying and screaming and she pushed you off her. It was approximately 20 seconds before you withdrew your penis from her mouth.
41The vulnerability of the victim was significant in these circumstances. She was only 12 years of age and by sitting on her chest, in order to penetrate her mouth with your penis, she was physically restricted in her ability to resist you, other than to scream before ultimately pushing you off her.
42I accept the prosecution submission that this is a mid-range example of the very serious crime of rape.
43Turning to the other offences, your counsel has submitted that the objective seriousness of your offending is ‘mid-range’. This is said to be because ‘apart from one charge of rape [which occurred in the context of a consensual sexual relationship], the offending was consensual and there were no threats made to the complainant by the defendant’.[3]
[3] Plea submission on behalf of the Defendant dated 10 October 2022 at [6], emphasis added.
44For the reasons explained by the Court of Appeal, the question of consent is irrelevant to the assessment of the gravity of sexual offending against children under the age of 16. In Clarkson[4] the Court explained that:
… the presence of consent does not of itself make the offence of sexual penetration of a child under 16 (or of committing an indecent act in the presence of a child under 16) any the less serious. Of itself, the child’s ‘consent’ is irrelevant to the criminality of the conduct. The presumption of harm is unaffected by consent. It follows that neither the gravity of the offence nor the culpability of the offender is altered in any way by the victim’s consent alone.[5]
[4] Clarkson v The Queen (2011) 32 VR 361.
[5] Ibid at [36].
45The Court cited with approval the Western Australian Court of Appeal case of Edwards in which it was stated that a law criminalising sexual activity with children ‘aims to protect children both against adults and against themselves’.[6]
[6] Edwards v R [2001] WASCA 263 at [15].
46The criminal law prohibits sexual offending, and specifically sexual offending against children, with the objective of upholding the fundamental right of every person to make decisions about their own sexual behaviour and to choose not to engage in sexual activity. By your conduct, you deprived BM of the ability to engage in sexual activity at a time and in circumstances of her choosing.
47The sexual penetration offences are grave. There is no hierarchy of seriousness for penetrative offences. Whilst digital and oral penetration do not ordinarily involve the same risks associated with penile penetration, that does not necessarily mean the offending is less serious. An assessment of the gravity of the penetrative offending involves a consideration of the particular circumstances in each case. Here the most striking feature that aggravates the penetrative offences is just how young and vulnerable the victim was.
48I consider your case to be a serious example of this type of offending for which your moral culpability is high.[7] There are several aggravating features of your offending.
[7] The prosecution submitted that the offending is ‘at the higher end’ – Prosecution submissions on plea dated 13 October 2022 at [11].
49First, there is the age of the victim. BM was at primary school for the duration of your offending. The jury did not find that BM was under the age of 12 as had been alleged by the prosecution.[8] Consistent with the jury verdict, I sentence you on the basis that she was 12 years old.
[8] See s 45 of the Crimes Act 1958 as at the dates of your offending.
50Secondly, there was a significant gap in age between yourself and BM. You were at least six years older than her and had been in previous relationships of a sexual nature. There is evidence before the court that you knew what you were doing was very wrong. On one occasion you told BM that you loved her and that if anyone found out what you were doing you ‘can get into a lot of trouble’. You told her that you would kill yourself if anyone found out.[9]
[9] BM VARE dated 29 November 2019, A 308.
51Thirdly, there was a clear breach of trust. You knew that BM had a crush on you and admired you because you were one of the better skaters at the skating centre. You had the relative status that comes from owning a car and having a licence which meant you could offer BM lifts to and from the centre, a place she loved to go. Because her father was unable to take her to the centre, she became dependent on you and you were aware of her dependence.
52You bought gifts for BM giving her the impression that this was a serious emotional relationship.
53Finally, your offending spanned over a period of 12 months and occurred on seven separate occasions. This was not an example of isolated offending on one occasion. You had a number of opportunities to desist and you chose to keep offending. The ‘relationship’ only ended at BM’s instigation after the occasion on which you raped her.
Impact of the Offending
54The court has not received any victim impact statements in this case. However, there is a presumption of ‘long term and serious harm, both physical and psychological’ in cases of sexual offending with children.[10] The law reflects the community’s view that ‘it is not until the age of 16 that a child has the psychological maturity and decision-making competence to agree to sexual activity’.[11]
[10] R v G [2009] 1 AC 92 at 108 [49] (Baroness Hale), cited with approval by the Court of Appeal in Clarkson at [33].
[11] Clarkson at [28].
55While the presumption may be rebutted,[12] there is no evidence before the court to rebut the presumption of harm in this case. You are therefore to be sentenced on the basis that your conduct has caused and may continue to cause harm to BM.
[12] Clarkson at [52]-[53].
Personal Circumstances
56I now turn to your personal circumstances which are drawn from the various expert reports filed with the court on your behalf.[13]
[13] Reports of: Kathryn Baker, psychologist, 2003; Glenn Chuck, psychologist, 2010; Simon Candlish, consultant psychologist, dated 15 August 2021; Amy Dluzniak, clinical neuropsychologist, dated 3 September 2021; and Gina Cidoni, psychologist, dated 6 October 2022.
57You were born in Geelong on 17 June 1995 and are now aged 27.
58You have one older brother with whom you have a supportive and close relationship.
59You were raised by your natural parents and at the time of this offending you were living in the family home. Although you mainly report positive childhood memories, you have had a turbulent relationship with your father which has been marked by verbal abuse. You described your father to Ms Cidoni as an ‘abusive drunk’.
60Your parents separated when you were in year 8 and you and your brother lived with your mother seeing your father on weekends. Your father returned to the family home when you were in year 10.
61In 2018, you moved in with your aunt to escape your father’s abusive behaviour. However, because you had become involved with drugs, she asked you to leave.
62You suffered from learning disabilities during childhood and were removed from a mainstream school and placed at Nelson Park school for specialised support in year 8. You completed year 11 at that school and commenced a spray-painting apprenticeship which you completed in six years.
63Your employment history has been marred by abusive employers who were impatient with your learning difficulties. The exception to this was your most recent employer, Timber Trust, who have been more supportive of you.
Mental Health and Cognitive Ability
64As stated above, you have had learning difficulties all of your life. In August 2021, you were the subject of a neuropsychological assessment by Amy Dluziak. Ms Dluziak, who was provided with earlier reports including that produced by Mr Candlish in 2021, administered a number of tests and concluded that you have a full scale IQ of 74 and that your level of intellectual function is ‘at the cusp of the intellectual disability range’.[14]
[14] Report of Amy Dluzniak, clinical neuropsychologist, dated 3 September 2021 at [51]-[52], emphasis in the original.
65Ms Dluzniak found no ‘clear evidence of significant mental health concerns more broadly’ which she reported was ‘consistent with Mr Candlish’s recommendation that [you] did not appear to meet criteria for major mental illness’.[15] Ms Dluzniak concluded that your borderline intellectual function and social and emotional immaturity ‘may render [you] vulnerable in a custodial environment’.[16]
[15] Report of Amy Dluzniak, clinical neuropsychologist, dated 3 September 2021 at [57].
[16] Report of Amy Dluzniak, clinical neuropsychologist, dated 3 September 2021 at [58].
66You were also assessed in 2021 by Simon Candlish, consultant psychologist. Mr Candlish administered the ‘Static-99R’ actuarial tool to assess risk for sexual recidivism. Based on the results, he concluded that you are an ‘average risk for being charged or convicted of another sexual offence’.[17]
[17] Report of Simon Candlish, consultant psychologist, dated 15 August 2021 at [60]-[62].
67Mr Candlish noted that you have not re-offended since 2015 and that you therefore fall into the low-risk category for sexual offending.[18]
[18] Report of Simon Candlish, consultant psychologist, dated 15 August 2021 at [77]-[78].
68Finally, you were assessed by Gina Cidoni, psychologist on 4 and 6 October 2022. Ms Cidoni’s report is dated 6 October 2022.
69Ms Cidoni opines that you have low average intellectual capacity but have ‘no signs of a learning or cognitive disability’.[19] Ms Cidoni diagnosed you with Paedophilic disorder (nonexclusive type, attracted to females)’.[20] She considers that you are teetering on the edge of a diagnosis of depression and anxiety ‘which will no doubt intensify in a prison setting’.[21]
[19] Report of Gina Cidoni, psychologist, dated 6 October 2022 at [114].
[20] Report of Gina Cidoni, psychologist, dated 6 October 2022 at [115].
[21] Report of Gina Cidoni, psychologist, dated 6 October 2022 at [126].
Verdins
70In an appropriate case, an accused person who suffers from a mental illness may be sentenced on the basis that her or his moral culpability for the offending is reduced. This may have the effect that:
(a) Denunciation of the offending will be less likely to be a relevant sentencing objective;
(b) The condition may have a bearing on the kind of sentence which should be imposed;
(c) General deterrence may be moderated or eliminated as a sentencing consideration; and
(d) Specific deterrence may be moderated eliminated as a sentencing consideration.[22]
[22] Verdins v The Queen [2007] VSCA 62 at [66], limbs 1-4.
71Before a sentencing court will give effect to these so-called ‘Verdins principles’, it will require ‘a connection between the impairment to mental functioning and the [accused’s] moral culpability’.[23] The impairment must have some ‘realistic connection’ with the offending; or have ‘caused or contributed’ to the offending; or be ‘causally linked’ to the offending.[24]
[23] DPP v O’Neill [2015] VSCA 325 at [74].
[24] See DPP v O’Neill [2015] VSCA 325 at [74] and the cases there cited.
72Mr Hands, on your behalf, submitted that limbs 1-4 of the Verdins principles apply to your case both because of your ‘cognitive deficits’ and your diagnosis of paedophilic disorder.
73In relation to your cognitive deficit, Ms Dluzniak, clinical neuropsychologist, concluded that you have ‘borderline intellectual function and social and emotional immaturity’.[25] You have a full-scale IQ of 74 and the reading ability of a fifth grader.
[25] Report of Ms Gina Cidoni dated 6 October 2022 at [58].
74Ms Cidoni concluded, on the basis of what she described as ‘limited testing’, that you have ‘low average intellectual capacity’ but ‘no signs of cognitive or learning disability’.[26]
[26] Report of Ms Gina Cidoni dated 6 October 2022 at [114].
75In light of this evidence, while I accept that you have a significant intellectual deficiency, there is little if any evidence before the court linking it to the cause of your offending.
76Your diagnosed paedophilic disorder,[27] raises an additional question – is such a disorder a ‘mental impairment’ for the purposes of the Verdins principles?
[27] Report of Ms Gina Cidoni dated 6 October 2022 at [115].
77Your counsel argued that ‘paraphilia (and paedophilia, a subset of paraphilia) are classed as “disorders” under the Minnesota Multiplastic Personality Inventory and, given the wide definition of “mental impairment” in Verdin’s [sic.] case, qualify as a mental impairment’.[28]
[28] Supplementary Plea Submission on Behalf of the Defendant dated 22 October 2022 at [e].
78The cases of R v Porter (No 3)[29] and The Queen v MAS[30] are cited in support of this proposition.
[29] R v Porter (No 3) [2022] ACTSC 236.
[30] The Queen v MAS [1998] VSC 286.
79In R v Porter, Loukas-Karlsson J of the ACT Supreme Court concluded that the offender’s paedophilic disorder ‘is a matter that may reduce his moral culpability to a limited extent’.[31] However, her Honour concluded that the disorder ‘is a matter that tends to increase the importance of specific deterrence’. Further, the need for general deterrence was not ameliorated.[32]
[31] [2022] ACTSC 236 at [194]. Her Honour referred to the judgment of McHugh J in Ryan v The Queen (2001) 206 CLR 267 at [40].
[32] [2022] ACTSC 236 at [196]. See also Ryan v The Queen [2001] HCA 21 at [46]-[47] (McHugh J); DPP v EB [2008] VSCA 127 at [13]-[14] (Nettle JA).
80The Queen v MAS was only concerned with the relevance of a diagnosis of mild paedophilia on the question of the future risk of offending in the context of whether a disproportionate sentence was justified under what was at the time s 5A(b) of the Sentencing Act 1991 (Vic).[33] It is not relevant to this question.
[33] See now s 6D(b).
81In the case of DPP v OJA,[34] Nettle JA, with whom Ashley and Redlich JJA agreed, explained by reference to the cases of Tsiaris[35] and Verdins[36] that ‘if the law of sentencing were completely logical, [such an offender]would be sentenced on the basis that his moral culpability is to some extent reduced by his psychosexual dysfunction’.[37] I note in this regard that, in Veen v The Queen (No 2), the High Court recognised that sentencing is ‘not a purely logical exercise’.[38] In particular, a sentencing judge must appropriately reflect the community’s expectation that offenders will suffer punishment and ‘that particular offences will merit severe punishment’.[39] Sexual offending against children clearly falls into that category.
[34] DPP v OJA (2007) 172 A Crim R 181
[35] R v Tsiaris [1996] 1 VR 398.
[36] [2007] VSCA 62.
[37] (2007) 172 A Crim R 181 at [14].
[38] Veen v The Queen (1988) 164 CLR 465 at 476.
[39] Ryan v The Queen [2001] HCA 21 at [46] (McHugh J)
82In any event, the evidence before the court does not demonstrate that any impairment from which you suffered at the time of your offending materially diminished your capacity to reason appropriately at the time of the offence concerning the wrongfulness of your offending.[40] In fact, Ms Cidoni, who examined you for this plea hearing expressly states that your paedophilic disorder ‘does not meet the criteria for Verdins’.[41]
[40] See DPP v O’Neill (2015) 47 VR 395 at [59].
[41] Report of Ms Gina Cidoni dated 6 October 2022 at [115]-[119].
83Further, the evidence suggests you were aware of the wrongfulness of the relationship. For example, at an early stage of the relationship, you prevailed upon BM to lie to her father about having a sore leg as an explanation for giving her a lift home.[42]
[42] See the evidence of BM in her VARE recording dated 29 November 2019, A 25; Record of Interview with the accused dated 8 June 2020, A 138.
84Finally, your condition does not ‘make the full application of the principles of general deterrence repugnant to the underlying sense of humanity which guides proper sentencing’. [43]
[43] See DPP v O’Neill (2015) 47 VR 395 at [59].
Other Matters in Mitigation
85You have no prior convictions and have committed no further offences since this offending in 2015.
86At 27 years of age you are still quite young and it is necessary for the sentence I impose to promote your rehabilitation and re-integration into the community.
87While a number of the previous restrictions on visits and access to courses have been lifted, serving time in custody remains particularly difficult in the uncertain period of the pandemic. It is difficult to predict the likely course of Covid-19 at this time.
88I take into account the opinion of Ms Cidoni that your mental health problems will ‘no doubt intensify in a prison setting’.[44] This enlivens limb 5 of Verdins.
[44] Report of Gina Cidoni, psychologist, dated 6 October 2022 at [126].
89On the question of delay, although your offending occurred in 2014-15, you were not interviewed and charged until June 2020. Since that time, some of the delay is attributable to you seeking two separate sentencing indications from Judges of this court.
90I accept your counsel’s submission that ‘delay is not a significant sentencing consideration in this matter’.[45] To the extent that it is relevant, it counts in your favour as you have not re-offended during the seven years since your last offence.
[45] Defence submissions on plea dated 10 October 2022 at [20].
Prospects for Rehabilitation
91I consider your prospects of rehabilitation are reasonable. On the one hand you have no prior convictions and you have not further offended. Whilst you are not to be punished for pleading not guilty to these offences, you are not entitled to the sentencing discount available to an offender who pleads guilty and acknowledges responsibility for their offending. Here, you have not accepted responsibility for this offending and you are assessed as a low to moderate risk of re-offending without formal intervention by Ms Cidoni.
92I have also taken into account that you have a supportive family. Your parents and your brother have supported you in court and have provided character references on your behalf.
93I have sought to promote your rehabilitation by setting an appropriate non-parole period.
Relevant Sentencing Principles
94Neither party was able to identify any similar cases where the accused’s guilt of offending against such a young girl was determined by a jury verdict. Such cases overwhelmingly resolve after pleas of guilty. It is instructive to refer to two cases with broadly similar facts bearing in mind that each case must be decided on its own facts and other cases can offer no more than broad guidance.[46]
[46] Director of Public Prosecutions v Dalgliesh [2017] HCA 41.
95In the case of Schembri v The Queen,[47] the accused, who was 18 at the time of the offending, pleaded guilty to three charges of sexual penetration of a child under 16 in one night with the 13-year-old victim. The maximum sentence was 10 years’ imprisonment. Sentences of between 3 years and 3 years and 6 months were upheld by the Court of Appeal. The Total Effective Sentence for the 3 charges was four years.
[47] Schembri v The Queen [2020] VSCA 217.
96DPP v Smith[48] also involved offending on the one occasion to which the accused pleaded guilty. The accused was 20 but his mental age was somewhat lower; the victim was 15. The accused had a prior conviction for rape in the Childrens’ Court. The total effective sentence for the two rolled up charges of 18 months with a 9 month non-parole period was described by the Court of Appeal as ‘remarkably low’.[49]
[48] DPP v Smith [2022] VSCA 4.
[49] [2022] VSCA 4 at [85].
97Mr Hands submitted on your behalf that the case of Treloar v The Queen[50] is ‘factually similar’ to your case although he accepted that that case involved a plea of guilty.[51] The accused there was sentenced to a 3-year CCO with onerous conditions. The facts in that case were that the female victim was 15 years old and the age gap was less than four years. Further, the accused had a ‘severe intellectual disability’ and there was no power imbalance between the two young people. The Court of Appeal upheld the sentencing judge’s characterisation of the case as falling into the ‘exceptional cases’ category identified in Clarkson.[52] The ‘presumption of harm’ had been rebutted. The present case is therefore distinguishable.
[50] Treloar v The Queen [2020] VSCA 6
[51] Supplementary Plea Submission on Behalf of the Defendant dated 22 October 2022, n 2.
[52] [2020] VSCA 6 at [19]-[22].
Sentencing principles
98I consider that the relevant sentencing considerations in your case are denunciation, appropriate punishment, community protection, specific deterrence and general deterrence.
99I consider that, in light of your previous good record and there being no offending since 2015, the need for specific deterrence is reduced to some extent although I note the assessment of your risk of further offending stemming from your diagnosis of paedophilic disorder. I also take into account your lack of remorse and your continued refusal to acknowledge your offending. [53]
[53] Report of Gina Cidoni, psychologist, dated 6 October 2022 at [82].
100Because each of the 15 offences of which you have been found guilty is a ‘sexual offence’ under s 6B of the Sentencing Act 1991 (Vic), you are to be sentenced as a ‘serious sexual offender’ once you are sentenced to imprisonment on the first two charges. Although you were 19 years old when you offended, you are now 27. You are therefore not a ‘young offender’ as defined in the Sentencing Act 1991 (Vic).
101That you were under the age of 21 when you offended does not prevent those offences being considered in the application of Part 2A of the Sentencing Act 1991 (Vic) to you.[54]
[54] R v Crowley [2009] VSCA 176 at [11].
102The consequences of the application to you of Part 2A of the Sentencing Act 1991 (Vic) are that once you have been sentenced to a term of imprisonment on 2 of the offences:
(a) The court must regard protection of the community from you as the ‘principal purpose’ for which sentence is imposed (s 6D)(a));
(b) The court may impose a disproportionate sentence on you although I note that the prosecution does not seek such a sentence in your case (s 6D(b));[55]
(c) Every sentence I impose in respect of the remaining offences must, unless I direct otherwise, be served cumulatively on any other uncompleted sentence (s 6E); and
(d) I must cause to be entered in the records of the court that you have been sentenced as a serious offender (s 6F).
[55] Prosecution submissions on plea dated 13 October 2022 at [9].
Consideration
103For the reasons I have set out earlier, I consider yours to be quite egregious examples of what are serious offences. Your moral culpability, although reduced to some extent by your youth and cognitive disability, is high. You have shown no remorse and your trial was run on the basis that BM was lying about all of your offending.
104As noted above, your counsel submits that you should be sentenced to a Community Correction Order. In the alternative, he submits that if you are to be sentenced to a custodial sentence, ‘a longer parole period should be imposed’.[56]
[56] Defence subs at [41].
105There are cases of sexual penetration with a child under the age of 16 in which Community Correction Orders have been imposed, either by themselves or in combination with a term of imprisonment.[57] However, unlike the present case, they involved pleas of guilty and the victims were older than 12. A number are best characterised as ‘exceptional cases’ as explained in Clarkson.[58] Crucially, none involved a jury verdict of rape.
[57] See Treloar v The Queen [2020] VSCA 6; Cooke v The Queen [2021] VSCA 70; Adam Rose (a pseudonym) v The Queen [2022] VSCA 112.
[58] at [49].
106The other factor that distinguishes your case from a number of those where CCOs have been imposed, is the need for the court to apply the ‘serious offender’ provisions in Part 2A of the Sentencing Act 1991 (Vic) to your case.
107I accept the prosecution submission that, despite the matters of mitigation I have discussed, your offending is too serious for any sentence other than a head sentence and a non-parole period.
108In considering the amount of cumulation to be ordered, I have had regard to the legislative presumption created by s 6E of the Sentencing Act 1991 (Vic). As the Court of Appeal has explained, the evident object of s 6E is ‘to make sentences to which it applies operate cumulatively rather than concurrently’.[59] However, this does not mean that the presumption of totality is to be disregarded.[60] I have assessed the extent to which each individual offence added to the total criminality of your conduct during the course of each single episode. I accept that the sentencing principle of totality means that a significant degree of concurrency is appropriate.
[59] DPP v Hum [2022] VSCA 57 at [113].
[60] Zhao v The Queen [2018] VSCA 267at [91]-[94].
109I have also taken into account that a number of the charges arose from single incidents.
Orders
110On charge 1, sexual penetration of a child under 16, you are convicted and sentenced to 2 years, 6 months’ imprisonment.
111On charge 2, committing an indecent act with a child, you are convicted and sentenced to 2 years’ imprisonment.
112On charge 3, sexual penetration of a child under 16, you are convicted and sentenced to 2 years, 6 months’ imprisonment.
113On charge 4, committing an indecent act with a child, you are convicted and sentenced to 18 months’ imprisonment.
114On charge 5, sexual penetration of a child under 16, you are convicted and sentenced to 2 years, 6 months’ imprisonment.
115On charge 7, sexual penetration of a child under 16, you are convicted and sentenced to 2 years, 6 months’ imprisonment.
116On charge 8, committing an indecent act with a child, you are convicted and sentenced to 18 months’ imprisonment.
117On charge 9, sexual penetration of a child under 16, you are convicted and sentenced to 3 years’ imprisonment.
118On charge 10, sexual penetration of a child under 16, you are convicted and sentenced to 2 years, 6 months’ imprisonment.
119On charge 11, committing an indecent act with a child, you are convicted and sentenced to 18 months’ imprisonment.
120On charge 12, sexual penetration of a child under 16, you are convicted and sentenced to 3 years’ imprisonment.
121On charge 13, sexual penetration of a child under 16, you are convicted and sentenced to 2 years, 6 months’ imprisonment.
122On charge 14, sexual penetration of a child under 16, you are convicted and sentenced to 2 years, 6 months’ imprisonment.
123On charge 15, sexual penetration of a child under 16, you are convicted and sentenced to three years’ imprisonment.
124On charge 17, rape, you are convicted and sentenced to 5 years, 8 months’ imprisonment. This is the base sentence.
125I make the following orders for cumulation. I order that 3 months of the sentences imposed on each of charges 1, 3, 5, 7, 9, 10, 12, 13 14 and 15 be served cumulatively upon charge 17 and upon each other; and 2 months of the sentence imposed on each of charges 2, 4, 8 and 11 be served cumulatively upon charge 17 and upon each other.
126This gives a total effective sentence of 8 years and 10 months.
127Having regard to s 11 of the Sentencing Act 1991 (Vic), I fix a period of 5 years and 10 months before you are eligible for parole.
128Pursuant to s 18 of the Sentencing Act 1991 (Vic), I declare that the 87 days you have spent on remand are to be reckoned as time served in respect of the sentence I impose today.
129Finally, your offending is subject to the provisions of the Sex Offenders Registration Act 2004 (Vic) and you are subject to the mandatory registration and reporting obligations under that Act. As you have been found guilty of two or more class 1 offences, the reporting period is for life.
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