Director of Public Prosecutions v Lewis (a Pseudonym)
[2022] VCC 1077
•14 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK LEWIS (A PSEUDONYM)[1] |
[1] To ensure there is no identification of a victim of a sexual offence, these published reasons for sentence have been anonymised by the adoption of pseudonyms in place of the names of the offender, victim/s and relatives and the removal of all identifying information. A schedule of substitutions will be retained by the Court for future reference.
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JUDGE: | HER HONOUR JUDGE CARLIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 June 2022 | |
DATE OF SENTENCE: | 14 July 2022 | |
CASE MAY BE CITED AS: | DPP v Lewis (A Pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1077 | |
REASONS FOR SENTENCE
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Subject: Criminal
Catchwords: plea of guilty; sexual penetration of a child under 16; involving a child in producing child abuse material; possession of child abuse material; young offender; need for offender to relocate to Victoria for Community Corrections Order.
Legislation Cited: Sentencing Act 1991 (Vic); Sex Offenders Registration Act2004 (Vic).
Cases Cited: Treloar v The Queen [2020] VSCA 6; DPP v Amad [2016] VSCA 279; Clarkson v the Queen (2011) 32 VR 36; McPherson v The Queen [2021] VSCA 53; DPP v Yuen [2020] VCC 1527; DPP v Calladine [2020] VCC 2014; Worboyes v The Queen [2021] VSCA 169.
Sentence: With conviction, sentenced to a 2-year Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Coombes | Office of Public Prosecutions |
| For the Accused | Ms N. Grunwald (plea) Mr C. Pearson (sentence) | Adrian Paull Criminal Lawyers |
HER HONOUR:
Introduction[2]
[2] Summary based on the agreed facts set out in the Summary of Prosecution Opening and marked as Exhibit B.
1Mark Lewis, you have pleaded guilty to three charges of sexual penetration of a child under the age of 16, one charge of involving a child in producing child abuse material, and one charge of possession of child abuse material.
2All charges relate to your then-girlfriend Lilly-May McGuire who, at 15 years old, was still a child. You first met Lilly-May on a school bus in February 2020. At the time you were both living and attending school in the same area of regional Victoria. You exchanged mobile and snapchat details and a relationship developed. You were 17 years old and assumed Lilly-May was older than her 15 years.
3The next month Lilly-May invited you to meet her parents at her place which you did. It was either at that meeting or soon after, that you were told exactly how old Lilly-May was. When Lilly-May’s parents learned you were nearly 18, they did not stop you from seeing Lilly-May, but her mother specifically warned you that because she was only 15 'nothing was to happen' and you agreed.
4A couple of days before your 18th birthday in 2020, Lilly-May’s parents dropped her at your grandparent's place, where you were then living, so that she could stay a few days. The morning of your 18th birthday was the first time you had sexual intercourse with each other, and it was Lilly-May’s first time altogether. The two of you had previously discussed whether you were ready to take this step, and both agreed that you were. You started kissing, then undressed and had penile-vaginal intercourse in your bedroom until Lilly-May told you that it was hurting, and you stopped. After a short while you both agreed to try again, and you did. Once again Lilly-May asked you to stop, and once again you did. The two of you then got dressed. Those two occasions together comprise Charge 1 – sexual penetration of a child under 16.
5In the evening of that day, you had sexual intercourse in your bedroom again. You first inserted your penis into Lilly-May’s mouth and then had penile-vaginal intercourse until you ejaculated. The oral penetration is Charge 2 and the penile-vaginal penetration is Charge 3, both charges of sexual penetration of a child under 16. Whilst Lilly-May was just as willing on this occasion, as she had been in the morning, what she did not know was that you were filming the whole episode on your mobile phone. This filming is Charge 4 – involving a child in the production of child abuse material.
6Your relationship with Lilly-May came to an end when the police became involved, which was on 12 June 2020. On that day, as a result of information received, the police executed a search warrant at your grandparent's house, arrested you and seized your mobile phone. You were taken to the nearest police station and interviewed. At the time of the interview the police did not know what they would find on your mobile phone and nor had Lilly-May disclosed anything. She was approached by police that same morning but was reluctant to talk. Of course, she did not know then that you had filmed the two of you having sexual intercourse.
7Analysis of your mobile phone revealed the video of you and Lilly-May having oral and penile sex on the occasion of your 18th birthday as well as a number of other sexually explicit photographs and videos of Lilly-May taken at different times.
8All these videos and images form the basis of Charge 5, possession of child abuse material. Lilly-May later told police that she had sent you naked photographs at your request via Snapchat and that when she did this, she received notifications that you took screenshots of them. She only mentioned her upper torso, but in your record of interview you mentioned her breasts, vagina, and buttocks.
9You were ultimately charged on 11 November 2020 and the matter resolved at the second committal mention on 17 February 2021 when you were committed to this Court by way of a straight hand up brief.
10The matter was booked in for a plea of guilty before me on 11 April 2022, but unfortunately was unable to proceed that day due to you testing positive to COVID at the court testing station. I note that your father had travelled all the way from west Victoria to New South Wales to collect you and drive you to Court in Melbourne for the plea and that the two of you had stayed in a hotel the night before. The matter was then adjourned until 6 June 2022 when you did plead guilty to the charges I have described and Ms Grunwald conducted a plea on your behalf. I note that the plea on that day proceeded remotely with you in New South Wales.
11Ms Grunwald submitted that a community corrections order was within range and the prosecution did not disagree.
12In arriving at an appropriate sentence for you, I am required by law to have regard to a variety of factors which I will outline in these sentencing remarks.[3] Some tend towards leniency, and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence.
[3] Sentencing Act 1991 (Vic) s 5(2) (‘Sentencing Act’).
Your personal circumstances
13Turning to your personal circumstances which were outlined in Defence submissions and a report of consultant psychologist, Jeffrey Cummins. Mr Cummins saw you by video conference on 29 April 2021.
14You are now 20 years old.
15You were born and raised in a small regional town in New South Wales. Your parents separated when you were four, with your mother staying in New South Wales and your father moving to regional Victoria. You have five half-siblings on your mother's side, and two on your father's side.
16You lived in New South Wales with your mother, stepfather and half-siblings for most of your life. You are close to your mother, but never formed a meaningful bond with your stepfather from whom your mother has recently separated.
17You attended local schools in New South Wales for most of your schooling, from kindergarten to Year 10. You told Mr Cummins that you had difficulty reading and writing at school – and still have some difficulty – however you were never diagnosed with a learning disability and have never received support from a teacher's aide. He assessed you as being average or low average intelligence.
18In 2019 you moved to regional Victoria, to live with your father and grandparents. Apparently living with your father 'did not work out' and when you saw Mr Cummins you were not on speaking terms with him. You have since reconciled with your father and intend to live with him if required to complete a corrections order in Victoria.
19It was whilst you lived in Victoria that the offending occurred. At that time, you were enrolled at the local school for Year 11. After your arrest, you withdrew from your studies and have never returned.
20You returned to New South Wales after the offending and lived with your mother, stepfather (until he separated from your mother) and half-siblings. You have had various casual jobs since returning including working in local take-away shops, and for a lumber company. At the time of the plea, you were working as a cook in a kebab shop, a job you obtained on your own initiative. You are interested in obtaining an apprenticeship as a mechanic as you have a passion for cars and restore cars as a hobby.
21Unfortunately, whilst working on a car in December 2021 you suffered a crush injury to your hand which is still causing you problems. Most recently black spots have been identified on your hand bones which require further investigation.
22You are involved in community activities and volunteering. You are passionate about football and up until a knee injury in July 2021, trained and volunteered with the local Football Club (NRL) multiple times a week. Throughout 2021 you also volunteered in First Aid tents at various sporting events in the area.
23You have had several significant relationships, one prior to the offending and one subsequent. At the moment you are single. You do not have any children.
24You have no diagnosed mental health conditions and no substance abuse issues, only drinking alcohol on social occasions. Your most serious physical injuries have occurred on the football field.
Objective Gravity of your offending and moral culpability
25Two factors of central importance in determining any sentence are the objective gravity of the offending and the moral culpability of the offender. Offending involving the sexual abuse of children is inherently serious. If there was any doubt about it, the maximum penalties in this case make it perfectly clear, being 15 years for the offence of sexual penetration of a child under 16 and 10 years for each of the offences involving a child in the production of child abuse material, and possession of child abuse material. Further, the fact the sexual penetration charges have a standard sentence of six years serves to reinforce the seriousness with which Parliament regards that crime.
26That said, there is obviously a spectrum of seriousness within all offences and yours are no exception.
27The fact that Lilly-May was a willing participant in the sexual activity does not excuse your conduct. The law is clear that a child's agreement to participate in sexual intercourse with an adult can never, of itself, be a mitigating factor. This is not least because children are presumed incapable of giving informed and meaningful consent to sexual activity. Further, the law casts a duty on adults to refrain from engaging in sexual activity with children no matter how willing the child might be.[4]
[4] Treloar v The Queen [2020] VSCA 6, [36]; DPP v Amad [2016] VSCA 279, [34] which noted that moral culpability should not be shifted to child victims.
28Rather than consent per se, the law says what is significant is the way in which any consent came about. This is something which bears on both the gravity of the offending and the moral culpability of the offender.[5]
[5] Clarkson v the Queen (2011) 32 VR 36, [4]-[7] (‘Clarkson’).
29As far as the sexual penetration charges are concerned, I accept that yours is the type of case our Court of Appeal has envisaged as being at the extreme bottom end of the spectrum, that being a relationship of genuine affection between a 15-year-old and an 18-year-old.[6] Also in your favour is the fact you acted responsibly by wearing a condom.
[6] Ibid [7].
30Moreover, you were barely an adult yourself, having turned 18 on the very day of the sexual penetration charges. The law recognises that young people are more prone to make ill-considered or rash decisions and may have less insight and self-control than an older person. They also may not fully appreciate the seriousness or consequences of their conduct, which I am satisfied is the case here. In that regard your police interview is instructive as although it reveals a knowledge that having sexual intercourse with Lilly-May was illegal, you misunderstood why. That is, you believed your being 18 was the problem when it was actually the age difference between you. Believing this, you lied about when you had sexual intercourse, saying it was a few days before your 18th birthday, rather than on your 18th birthday. Whilst I am satisfied this was a lie, it does not alter my view of your culpability, which I regard as low for these offences.
31Charges 4 and 5 are more concerning, particularly Charge 4, that is, your filming of sexual activity.
32In relation to Charge 5, you told police that you knew you had nude photographs of Lilly-May, including her breasts, vagina and buttocks, on your phone and that you had intended to delete them prior to your 18th birthday but became too busy and forgot. I do not accept this explanation which is similar to your lie about the timing of your sexual intercourse. Regardless, I consider your conduct and moral culpability to be at the lower end of the spectrum of seriousness for the same reasons as the sexual penetration charges. I also take into account the fact that you had the images for your own gratification in the context of an affectionate relationship and did not disseminate them in any way.
33Turning finally to Charge 4, that is the charge of involving a child in producing child abuse material. You had placed the phone on your bedside table and the video shows you adjusting it at various times. Because of this the prosecution accepts that you might reasonably have believed Lilly-May was aware of what you were doing. Or to put it another way, the prosecution accepts that it cannot prove beyond reasonable doubt that you knew she was unaware of what you were doing. Quite apart from the illegality of this conduct, it was something you simply should not have done without asking her express permission. Filming the two of you engaged in sexual acts was simply too serious a matter to take her consent for granted. I can only hope with greater maturity you would never do such a thing again. Given the concession made by the Crown and your immaturity, I also regard this offence as falling at the lower end of the spectrum.
Impact of your offending
34I am required to take into account the impact of your offending on your victim and her personal circumstances.[7] There is a legal presumption that premature sexual activity causes long term and serious physical and psychological harm to children who therefore must be protected from themselves and immature judgment.[8] This case demonstrates the reason for this presumption as even though Lilly-May was a willing participant in the sexual activity, if not the filming, her victim impact statement indicates the impact your offending has had on her.
[7] Sentencing Act (n 3) s 5(2)(daa), (da) and (db).
[8] Clarkson (n 5).
35Lilly-May’s victim impact statement was read to the Court by the Prosecutor. She said she was 'upset, angry, and shut a lot of people out' of her life, and that she 'had thoughts of ending it all to make the pain go away'. She described how your offending negatively affected her mood, mental health, physical health, relationships, and education.
36On a hopeful note, she stated that she is 'becoming stronger and gaining a little more confidence. [She is] proud of [her] progress'.
Current Sentence Practices
37To promote consistency of approach in sentencing, particularly the application of relevant principles, I am required to have regard to current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both.
38However, since 1 February 2018, the offence of sexual penetration of a child under 16 has been a standard sentence offence under the Sentencing Act1991 (Vic) with the standard sentence for an offence of mid-range objective seriousness set at six years with a presumed minimum non-parole period of 60 per cent of the head sentence.[9]
[9] The methodology for sentencing for standard sentence offences is now settled and I do not need to repeat it here. Suffice to quote our Court of Appeal who recently said that a standard sentence is 'a factor in the application of the intuitive synthesis, in the same way that the maximum penalty is. No more, no less'. See McPherson v The Queen [2021] VSCA 53, 31.
39Apart from anything else this is significant because in the case of standard sentence offences I am only allowed to have regard to other standard sentences for the purpose of establishing current sentencing practices, in other words sentences imposed for offences committed after 1 February 2018.[10] This constraint means there are no meaningful sentencing statistics and limited comparable cases in this case.
[10] Sentencing Act (n 3) s 5B(2)(b).
40Nevertheless, I was referred to a number of cases by the prosecution and defence and have had regard to them. The most similar being a sentence I imposed myself in the matter of Yuen,[11] and also the case of Calladine,[12] both involving youthful offenders who were sentenced to corrections orders.
[11] DPP v Yuen [2020] VCC 1527.
[12] DPP v Calladine [2020] VCC 2014.
Plea of Guilty, co-operation and remorse
41You are entitled to a significant discount in your sentence for your level of co-operation. It is true that you were not entirely frank in your interview, for example believing that the criminality arose from you turning 18, rather than the age difference between you, you claimed the occasion you had sexual intercourse with Lilly-May was prior to your 18th birthday when you well knew it was actually on your birthday. It is also true that at the time of the interview you knew what the police would find on your mobile phone even if they did not, but the fact remains that you made substantial admissions, for example as to your knowledge of Lilly-May’s age, and for that you deserve full credit.
42You also pleaded guilty at a very early stage. In doing so you facilitated the course of justice, took legal responsibility for your crimes and spared Lilly-May the ordeal of coming to Court to give evidence. Our Court of Appeal has recently and repeatedly emphasised the need for sentences to reflect the high value of pleas of guilty in the current COVID-19 environment where the legal system is under considerable strain.[13]
[13] See, eg, Worboyes v The Queen [2021] VSCA 169, [39].
43Moreover, Mr Cummins believed that you were both regretful and remorseful for your actions and I accept that you are, entitling you to even more of a discount.
Your character and risk of reoffending
44You are a young man. You have no prior convictions and nothing subsequent in over two years. You have a reasonable work history and a reasonable education. You have the support of both parents and the offer of stable accommodation in Victoria and New South Wales. Mr Cummins assessed your risk of re-offending as low to moderate trending to low. All up I consider your prospects of rehabilitation to be very good. That is, I consider you unlikely to come before the courts again.
Delay
45I take into account the fact that you have had this matter hanging over your head for two years. This delay has been caused for various reasons, including the impact of COVID. In all that time you have not known your fate, nor have you known whether you would be placed on the Sex Offender Register.
Purposes of Sentencing
46I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation and protection of the community. A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required.
47Further, when there are multiple charges, such as here, you must not be punished any more than is proportionate and appropriate to your overall criminality.
48In the case of sexual offences against children, the principles of general deterrence, denunciation and just punishment are extremely important. It is necessary that people who might be minded to commit the type of offences that you did are deterred from doing so in the knowledge that if caught they will be punished.
49On the other hand, the law also recognises the paramount importance of promoting the rehabilitation of young offenders such as you. Not only is this because young people have the greatest potential to rehabilitate, but also because it is by their rehabilitation that society will be best protected. Further, it is generally acknowledged that a period of incarceration in adult prison will most likely have a detrimental effect on a young person's prospects of rehabilitation. Whilst it is also settled law that the importance of rehabilitation in the sentencing equation declines as the seriousness of the offence increases, in my view the objective seriousness of your offending is not such as to significantly detract from the need to promote your rehabilitation.
50For reasons I have already explained I do not consider the principles of specific deterrence or community protection have any great role to play in your case.
51After weighing all the competing considerations, I have concluded that all the relevant sentencing purposes can be met in your case by the imposition of a community corrections order with punitive and rehabilitative components.
52I am obliged to say how my sentence relates to the standard sentence of 6 years for Charges 1 to 3. Lest there be any doubt about it, I consider it appropriate to depart from the standard sentence because of your powerful mitigating factors, the low objective seriousness of the offences, and your low moral culpability.
Community corrections order
53I have had you assessed for a community corrections order and you have been found suitable and have indicated your consent to that order. So could you stand up now please, Mr Lewis.
Sentence
54On all charges I convict and sentence you to a single community corrections order. The order will last for two years, so that is 24 months.
55You are to report to the local Community Correctional Centre within two working days of this order, which will be within two working days of today.
56Now, as well as the mandatory conditions – and those mandatory conditions include that you not commit another offence, that you not leave Victoria without first getting permission to do so, that you must obey all lawful instructions from and directions of the Secretary and there are other mandatory conditions – I have imposed some special conditions and they are as follows:
· You are to be under the supervision of a Corrections officer for the duration of the order;
· You are to perform 200 hours of unpaid community work over the period of the order;
· You are to undergo assessment and treatment, including testing, for alcohol abuse and dependency;
· You are to undertake offending behaviour programs as directed. I do not know what programs they may assess as being desirable for you to undertake, but whatever they are, you need to undertake those programs, if any;
· You are to participate in judicial monitoring and are to appear at 9.30 am on Monday 26 September 2022 for your first judicial monitoring and that can be remote. So what that will be is, you can link in from wherever you are and you do not need to be represented. A Corrections officer will be there and basically you will just be talking to me and we will be seeing how the order is going, how you are going and how Corrections is going. Depending on how you are going, we will book in another judicial monitoring after that. It might come to a time when I do not think there will need to be any other judicial monitorings and that will be the end of it.
57I direct that all of the hours that you satisfactorily undertake in treatment and rehabilitation are to be counted towards the 200 hours of unpaid community work. What that means is, if for example you end up doing 50 hours of treatment and rehabilitation, then those 50 hours would come off the 200 hours.
58Now Mr Pearson will explain that order in more detail but I need to give you this and make sure you understand this, as well as the terms of the order. You have to make sure that you comply with the order because breach of the order is an offence in itself and so you will be charged with breaching the order, and that will be another conviction, or you might not be convicted but very likely you would be convicted. And in addition, if you do not comply with the order you are liable to be resentenced for these offences and if you are resentenced, it may well be the case you would not get such a lenient disposition – going up the scale, what that would be is imprisonment. If you did need to be resentenced, I would have to take into account the extent to which you complied with your Corrections order, so I cannot say what the sentence would be, I would have to have another plea, effectively. But just be aware of that. If you breach the order you will commit another offence, that will be on your record, and you are liable to be resentenced for these offences. So do you understand that?
59ACCUSED: Yes, Your Honour.
60HER HONOUR: The Corrections order I have imposed is a long order. In fixing the number of hours of unpaid work, that is the 200 hours, I have taken into account the fact that you have agreed to move from New South Wales to Victoria to complete those hours and that you will have to remain in Victoria for at least as long as it takes you to complete the hours. I cannot say whether you will be allowed to return to New South Wales if you want to, once you have done the hours, that will be up to the Office of Corrections. But what I can say is you will have to stay in Victoria for at least as long as it takes you to do those hours, all right. So do you understand the terms of that order?
61ACCUSED: Yes, Your Honour.
62HER HONOUR: I will just say as well, because I have to, that if you had not pleaded guilty to these charges and if the matter had gone to trial and been heard by a jury and you had been found guilty, I would have sentenced you to a total effective sentence of imprisonment of two years with a non-parole period of one year and six months.
Sex Offender Registration
63Now the last matter I have to talk to you about is the Sex Offender Registration. You have committed three class 1 and two class 2 offences, with Charge 5 not committed within 24 hours of Charges 1 to 4. That means you will be a registered sex offender for the rest of your life unless I order otherwise, which I can only do in limited circumstances. You have applied for a registration exemption order which is not opposed by the prosecution. As I indicated during the plea hearing I will grant that application, that is the exemption, as I am satisfied that the criteria set out in s11B(1) of the Sex Offenders Registration Act2004 (Vic) are met and it is appropriate to do so.
Ancillary orders
64Now the only final thing is the prosecution have made an application for disposal of your phone and that has been indicated to me that it is not opposed by the defence. So I am satisfied it is appropriate to make that order and I will make that disposal order in respect of the phone.
65Now, Mr Lewis, you can be seated again. I have to sign the Corrections order, then I will give it to you or arrange for it to be given to you and then you sign it.
66MR PEARSON: Might I approach the accused, Your Honour?
67HER HONOUR: Yes, certainly.
68MR PEARSON: If Your Honour please, Mr Lewis consents to that order being made and he has signed that document.
69HER HONOUR: Thank you. All right, anything else before I adjourn?
70MS COOMBES: No, Your Honour.
71MR PEARSON: Not for my part, Your Honour. Thank you very much.
72HIS HONOUR: All right, well Mr Lewis, I will see you at the first judicial monitoring and please have everything go smoothly, all right.
73ACCUSED: Yes, Your Honour.
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