Director of Public Prosecutions v Llewelyn
[2023] VCC 1486
•23 August 2023
IN THE COUNTY COURT OF VICTORIA
AT BENDIGO
CRIMINAL DIVISION
Revised
Not Restricted
Suitable for PublicationSEXUAL OFFENCES LIST
Case No. CR-22-02429
DIRECTOR OF PUBLIC PROSECUTIONS v MICHAEL LLEWELYN ---
JUDGE:
HIS HONOUR CHIEF JUDGE KIDD
WHERE HELD:
Bendigo
DATE OF HEARING:
5 July 2023
DATE OF SENTENCE:
23 August 2023
CASE MAY BE CITED AS:
DPP v Llewelyn
MEDIUM NEUTRAL CITATION:
[2023] VCC 1486
REASONS FOR SENTENCE
---Subject:CRIMINAL LAW
Catchwords: Offender maintained a sexual relationship with a child under 16 years of age ― victim 14 years old at the commencement of the charge period ― multiple acts of sexual penetration (oral and vaginal) ― unprotected sexual intercourse ― victim became pregnant ― case of apparent consent ― two episodes of sexual offending filmed by offender ― production of child abuse material ― breaches of family violence intervention order ― deal with property reasonably suspected of being proceeds of crime ― prospects of rehabilitation not good ― plea of guilty ― no material delay ― emotional immaturity ― application of principles underlying Bugmy ― standard sentencing scheme ― community protection the principal sentencing purpose for several offences ― serious sex offender
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic), Sex Offenders Registration Act 2004 (Vic)
Cases Cited:R v Cotham [1998] VSCA 111; Clarkson v The Queen [2011] VSCA 157; Bugmy v The Queen (2013) 249 CLR 571; Director of Public Prosecutions (Cth) v Garside (2016) 50 VR 800; DPP v Green [2020] VSCA 23; DPP v Amaral [2020] VSCA 290; Worboyes v The Queen (2021) 96 MVR 344; McPherson v The Queen [2021] VSCA 53; Sabbatucci v The Queen [2021] VSCA 340; Black v The Queen (2022) VSCA 125; Roberts v The King [2023] VSCA 92
Sentence: Total effective sentence of 6 years and 6 months’ imprisonment, with a non-parole period of 4 years and 6 months
---
APPEARANCES:
Counsel Solicitors For the DPP Ms F. Holmes (plea)
Ms C. Richardson (sentence)Abbey Hogan, Solicitor for Public Prosecutions For the Accused Mr C. Hooper (plea)
Mr M. Brugman (sentence)
Ann Valos Criminal Law HIS HONOUR:
Introduction
1Nicole Freeman[1] was 14 years old when you first engaged in sexual activity with her. You, Michael Llewelyn, were 35 years old. As a result of that sexual activity, Ms Freeman became pregnant. She now has a child.
[1] A pseudonym.
2The law is clear ― an adult cannot engage in sexual activity of any kind with a child under the age of 16. The prohibition on sexual activity with a child under the age of 16 is designed to protect children from the harm caused by premature sexual activity. It is the legislative expression of a longstanding community consensus 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.
3Your conduct, and its life-altering consequences, exemplifies the harm that can be caused ― both to the victim and those around them ― when adults engage in sexual activity with children.
4As result of your conduct, you have pleaded guilty to six charges of sexual penetration of a child under 16 years, contrary to s 49B(1) of the Crimes Act 1958 (Vic). The maximum penalty for an offence contrary to s 49B(1) is 15 years’ imprisonment.
5You have also pleaded guilty to two charges of producing child abuse material, contrary to s 51C(1) of the Crimes Act; and one charge of persistent contravention of a family violence protection order, contrary to s 125A of the Family Violence ProtectionAct 2008 (Vic). The maximum penalty for an offence contrary to s 51C(1) of the Crimes Act is 10 years’ imprisonment, and the maximum penalty contrary to s 125A of the Family Violence Protection Act is five years’ imprisonment.
6Additionally, there are several related summary offences before the Court, namely:
· two charges of contravening a family violence protection order, contrary to s 123(2) of the Family Violence Protection Act; and
· one charge of dealing with property suspected of being the proceeds of crime, contrary to s 195 of the Crimes Act.
7The maximum penalty for each summary offence is two years’ imprisonment.
8You have pleaded guilty to each summary offence and you have consented to this Court dealing with them today.
Summary of offending
9I will now summarise the facts and circumstances of your offending.
10You have known Ms Freeman since she was 10 years old. You met her through your friendship with her biological father. Over time, you also became friends with Ms Freeman’s mother. Ms Freeman’s mother prepared a detailed Victim Impact Statement, which was read on the plea. I will address the Victim Impact Statement later in these reasons.
11Your relationship with Ms Freeman began to develop at the start of 2021. You had just been released from custody and Ms Freeman contacted you on Facebook Messenger to check in on you. You continued to communicate with Ms Freeman and, eventually, took on a more prominent role in her life. In these early stages, you acted as a mode of transport, ferrying her between her parents’ houses in Castlemaine and Bendigo.
12In around August 2021, you began to spend a lot of time at Ms Freeman’s house. Ms Freeman had a boyfriend at the time. The three of you would idle in Ms Freeman’s bedroom; Ms Freeman would often lay on the bed while you and her boyfriend spoke.
13At the start of November 2021, Ms Freeman was in the Bendigo central business district with one of her friends. Her friend left her alone, and Ms Freeman contacted you. You arranged to meet her at a park in Kangaroo Flat. You met with Ms Freeman and took her to your friend’s house. You and Ms Freeman stayed at your friend’s house over the weekend. Your relationship progressed, and it was at this time that you began kissing.
14Ms Freeman recalls that you picked her up from her house the day after. As is often the case in these matters, Ms Freeman could not recall the precise date. You took Ms Freeman to a hotel room, which at the time was being occupied by one of your friends. Your friend was not there, but you had a key to the room. You and Ms Freeman smoked a cigarette and watched some TV. You became intimate and, ultimately, engaged in sexual intercourse by penetrating her vagina with your penis. You were not wearing a condom and you ejaculated on her stomach. At the time you sexually penetrated Ms Freeman, you were 35 years old. She was 14. This incident constitutes Charge 1 ― sexual penetration of a child under 16.
15On 21 November 2021, you were arrested and remanded in custody for unrelated matters. You continued to communicate with Ms Freeman while you were in custody.
16You were released from custody on 24 February 2022. Ms Freeman and her mother picked you up and drove you to your car. After collecting your car, you took Ms Freeman to another hotel. There, the pair of you discussed contraception. You asked Ms Freeman if she was on ‘the pill’. Ms Freeman advised you that she was not using any form of contraception. You then engaged in sexual intercourse with Ms Freeman, penetrating her vagina with your penis. Despite the earlier discussion about contraception, you did not use a condom and you ejaculated inside Ms Freeman’s vagina. This incident constitutes Charge 4 ― sexual penetration of a child under 16.
17Ms Freeman stayed with you overnight. The next morning, being 25 February 2022, you and Ms Freeman again engaged in sexual intercourse. You penetrated her vagina with your penis. You did not use a condom and you ejaculated inside her vagina. This incident constitutes Charge 5 ― sexual penetration of a child under 16.
18Charge 6 ― sexual penetration of a child under 16 is a rolled-up charge comprised of numerous instance of sexual penetration that occurred between 28 February 2022 and 21 May 2022 at the following locations:
· in Ms Freeman’s bedroom;
· in Ms Freeman’s loungeroom; and
· in your car.
19On each occasion the subject of Charge 6, you penetrated Ms Freeman’s vagina with your penis. You did not use a condom and you ejaculated inside her vagina.
20On 14 March 2022, you had sexual intercourse with Ms Freeman by penetrating her vagina with your penis. You did not wear a condom. This incident constitutes Charge 7 ― sexual penetration of a child under 16. You also video recorded part of the sexual activity. The recording, which runs for approximately one minute, includes a close up view of your penis penetrating Ms Freeman’s vagina. Ms Freeman’s face can be clearly observed in parts of the recording. Ms Freeman was 15 years old at the time the video was recorded. Your conduct in recording the video constitutes Charge 8 ― producing child abuse material.
21On 17 March 2022, Ms Freeman completed a home pregnancy test and learned that she was likely pregnant. She showed you the test and you queried its accuracy. You purchased approximately five additional home pregnancy tests for Ms Freeman, which she completed. Each test indicated that Ms Freeman was pregnant.
22The tests were accurate, and Ms Freeman was, in fact, pregnant. Ms Freeman decided to go ahead with the pregnancy.
23On 12 May 2022, you were again arrested for unrelated matters. Your mobile phone was seized as part of that investigation, and, upon inspection of its contents, police located a video of you penetrating Ms Freeman’s mouth with your penis. The video was filmed by you. The act of oral penetration constitutes Charge 2 ― sexual penetration of a child under 16, and your conduct in recording the video constitutes Charge 3 ― produce child abuse material.
24You were arrested in respect of this matter on 21 May 2022.
25Your car was searched, and police located a HP laptop. The HP laptop did not belong to you. Inquiries revealed that it was stolen from a burglary that occurred in Strathfieldsaye in September 2021. Your possession of the laptop constitutes Summary Charge 26 ― deal with property suspected of being proceeds of crime.
26You participated in a record of interview during which you denied being in a sexual relationship with Ms Freeman. However, as police were preparing to transport you to Shepparton to undergo a forensic procedure, you informed them that you wished to participate in a further record of interview. Police acceded to your request. During your subsequent record of interview, you made a number of admissions.
27You were charged and remanded in custody.
28Following your arrest, police made an application for an interim family violence intervention order naming Ms Freeman as the affected family member. The order was made on 23 May 2022 and a copy was duly served on you in custody. Relevantly, the interim order prohibited you from contacting or communicating with Ms Freeman, or causing another person to do so on your behalf.
29Police listened to a number of phone calls that you made while you were in custody. Between 21 May 2022 and 9 June 2022, you contacted your sister by phone on four separate occasions and asked her to contact Ms Freeman on your behalf. That is, you enlisted your sister to act as a conduit between you and Ms Freeman. Your communications with your sister included requests for her to inform Ms Freeman that you ‘love her heaps’. The communications with your sister, all of which occurred within a 28-day period, constitute Charge 9 ― persistent contravention of an interim family violence intervention order.
30You have also been charged with two summary offences of contravening a family violence intervention order ― Summary Charge 23 and Summary Charge 24.
31Summary Charge 23 relates to a letter that you sent to Ms Freeman on 21 June 2022. The letter was addressed to her unborn child.
32Summary Charge 24 is a rolled-up charge encompassing conduct that occurred on 3 July 2022 and 15 September 2022. On 3 July 2022, you contacted Ms Freeman directly by phone and had a 10-minute conversation. During the call, you professed you love for Ms Freeman and asked her if she will ‘wait for me to get out’. On 15 September, you spoke to your sister over the phone and asked her to dial in Ms Freeman, which she did. Ms Freeman answered the phone and you had four-minute conversation. You again professed your love for Ms Freeman.
Victim impact statement
33The mother of Ms Freeman provided a victim impact statement which was tendered on the plea.
34Ms Freeman’s mother’s reading of her victim impact statement was extremely moving. What I do take from the victim impact statement is the very significant and life changing impact that your offending has had upon her, upon her trust of adults, and on this family. Ms Freeman spoke of her daughter’s lost childhood and the huge physical, emotional and mental challenges faced by motherhood at such a young age. Ms Freeman’s mother feels ongoing terrible guilt about having allowed you into their lives. I want to make it clear that this offending was yours and yours alone.
35There were some passages to the statement which were clearly inadmissible, and which were not read on the plea. The defence also highlighted other passages where there is some inadmissible material intermingled with Ms Freeman's mother’s genuine attempts to express the profound impact which your offending has had upon her. Ms Freeman’s mother spoke about future concerns held by her about you; she also described your offending in ways which are not before me in the indictment or in the agreed summary of facts. I make clear that I only punish you for the offences for which you have pleaded guilty, and based upon the facts outlined by the prosecution, and I take into account only the impact which this offending has had.
Objective gravity and moral culpability
36I turn to an assessment of the objective gravity of the offending and to your moral culpability. I begin with the charges for sexual penetration of a child under the age of 16, namely Charges 1, 2, 4, 5, 6 and 7.
Sexual penetration of a child under the age of 16
37Your counsel relied upon the fact that the victim in this case, Ms Freeman, purported to consent to this sexual relationship.
38A child’s apparent consent can never, of itself, be a mitigating factor.
39Our Court of Appeal has said the following:
The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent. It is for this reason that a child’s consent is more accurately referred to as ‘apparent’ or ‘ostensible’ consent.[2]
[2] Clarkson v The Queen [2011] VSCA 157 at [3].
40This was a relationship of apparent or purported consent. There was no violence or coercion. Proof that the child purportedly consented is the beginning, rather than the end, of the sentencing court’s enquiry. In assessing the gravity of the offence and the offender’s culpability, my attention must be directed not at consent as such, but at the circumstances in which the apparent consent came to be given. This requires me to consider at least the following matters:
· the relative ages of the offender and the victim. The more mature the offender, the greater the degree of self-control should be demanded of them;[3]
· whether the offender was in a position of trust or authority with respect to the victim, which facilitated the commission of the offence;
· the situation of the victim, and the degree to which they were taken advantage of; and
· what the evidence shows about harm already suffered or likely to be suffered.
[3] Clarkson v The Queen [2011] VSCA 157 at [37].
41I make the following observations about the objective gravity of this offending, of your offending:
· Viewed objectively, your relationship with the victim, Ms Freeman, was a grossly unequal relationship. It involved a very significant difference in age and balance of power.
· You were a grown adult middle-aged man. When your offending commenced, the victim was 14 years and nine months old.
·
You also exploited the victim through your trusted family friendship with
Ms Freeman’s father, which is illustrative of the degree to which this relationship was unequal.
· The pregnancy is a significant aggravating feature of your offending; it has changed Ms Freeman’s life forever and has compromised the balance of her childhood.[4] You penetrated and ejaculated in Ms Freeman's vagina after you had been told she was taking no contraception and you did so repeatedly.
· As your psychologist said, and I accept, you played upon Ms Freeman’s vulnerability and her young age.
· Your offending was repetitive, persistent and prolonged spanning some six months.
[4] DPP v Amaral [2020] VSCA 290, [37]; Roberts v The King [2023] VSCA 92, [17].
42On the other hand, as I indicated, you did not physically coerce or threaten Ms Freeman and there is no evidence of grooming. Accepting that you took advantage of the family situation, you were not predatory. I also accept that this offending did not involve a breach of trust or authority of the kind which might be seen in a formal relationship of care, supervision or responsibility. This offence also contemplates that a victim might be as young as having just turned 12 years of age through to a child who is a day short of their 16th birthday. While Ms Freeman was not on the cusp of the age of consent ― and certainly not when the offending commenced ― she was generally in the upper part of this age range.
43All sexual offending against children is very serious by nature and this offence is inherently serious. There is, however, a spectrum along which different instances of this offence are situated.
44Viewed as a whole the offending is a reasonably serious example of this type of offence and sits at least in the mid-range of the spectrum.
45However, my assessment of your moral culpability, and the gravity of the offending, is tempered to some extent by the evidence concerning your childhood background and consequential emotional immaturity. I will return to this.
Production of child pornography
46You have pleaded guilty to two charges of producing child abuse material, being Charges 3 and 8.
47The production of child abuse material is an inherently serious offence; there are no trivial examples of an offence involving the exploitation and corruption of children..[5]
[5]Director of Public Prosecutions (Cth) v Garside (2016) 50 VR 800, [62].
48The factors relevant to the assessment of the objective seriousness of child abuse material offences are well-settled.[6] The following factors are relevant to my present task with you:
·An actual child was used in the creation of this material.
·The material produced by you includes penetrative acts ― both oral and penile.
·Despite the abhorrence of child abuse material in any quantity, the amount produced by you is much less than ordinarily appears in matters that come before the Court.
·There is no suggestion that you produced the child abuse material for sale or dissemination or that you benefited, financially or otherwise, from the production of the child abuse material.
·The offending was relatively unsophisticated. I am unable to infer that it was planned.
[6]See, eg, Director of Public Prosecutions (Cth) v Garside (2016) 50 VR 800, [25].
49While you were a participant in the sexual acts which you filmed, you will be separately and solely punished for those acts under the sexual penetration charges.
50When all the circumstances are taken into account, I find that Charges 3 and 8 are both moderate examples of the serious offence of producing child abuse material.
Persistent contravention
51The final indictable offence is Charge 9 (persistent contravention of a family violence intervention order). The charge encompasses four individual breaches.
52Family violence is a scourge on society. It is alarmingly prevalent, and its effects are devastating. Family violence intervention orders are designed to protect those who are at risk of family violence. Strict compliance is imperative. It necessarily follows that any breach of a family violence intervention order is a matter of some concern; and I quote here from one of the Court of Appeal's authorities: ‘it is very much in the interests of the community that those against whom such orders are made be under no misapprehension that the courts will punish severely those who breach such orders.’[7]
[7]R v Cotham [1998] VSCA 111, [14].
53The order here was made to protect Ms Freeman from you. Despite the terms of that order being explained to you, you immediately took steps to circumvent it. You enlisted your sister as a messenger, asking her to pass messages onto to Ms Freeman on your behalf. The content of your communications intended for Ms Freeman ― which typically included persistent declarations of love ― betrayed a total lack of insight into your situation and the effect of your conduct on Ms Freeman.
54That said, while by no means innocuous or innocent, the breaches did not include threats of violence or harm. There is no evidence before me of the effect that the breaches had on Ms Freeman, nor her attitude towards the family violence intervention order generally (noting that it was applied for by the police).
Summary offences
55Summary Charges 23 and 24 relate to further contraventions of the family violence intervention order.
56Summary Charge 23 is the less serious of the two. I find that your conduct in sending a letter to your unborn child, whilst a breach of the intervention order because it was sent to Ms Freeman, is towards the much lower end of the spectrum of objective seriousness. However, as I said earlier in these reasons, any breach of family violence intervention orders is a matter of concern. Put simply, the letter should not have been sent, irrespective of its purpose or your motivations.
57Summary Charge 24 is more serious. It is a rolled-up charge encompassing two telephone conversations you had with Ms Freeman. The communications with Ms Freeman ran totally counter to the purpose for which the order was made.
58Summary Charge 26 relates to your possession of a laptop that is reasonably suspected of being the proceeds of crime. In circumstances where the property was not of great (financial) value, this is a low-level example of this offence, sitting towards the bottom of the range of objective seriousness.
Personal circumstances
59You are 36 years of age. You were 35 years old at the time of the offending.
60Your personal history is detailed in the Psychological Assessment Report authored by Dr Alison Mynard, which was tendered on the plea. I have read that report in its entirety. The following is a summary of your personal circumstances.
61In 1988, you were adopted from an orphanage in Thailand. You were two years old. Your adoptive parents, who supported you on the plea, brought you to live in Bendigo. Save for a traumatic incident that occurred when you were nine years old, your childhood was stable and unremarkable. Indeed, you described it as the 'best [you] could think of'.
62I will say more about your childhood later in these reasons.
63You successfully completed year 12, however, you did not get the marks required for admission to your desired course. Consistently with what appears to have been a strong work ethic in your adolescent years, you commenced an electrical apprenticeship with a friend, which you completed four and a half years later. You also spent a period of time, approximately three years, as an officer in the Australian Army.
64Dr Mynard’s report is silent as to your course your career took in your later years. However, she does say that you have been disqualified from practising as an electrician. Apparently, the last job you had was working for a fencing company in Bendigo.
65Your chequered employment history is, perhaps, unsurprising. You have spent a not insubstantial portion of your adult years in custody. That brings me to your criminal record.
Criminal history
66You have an extensive criminal history, dating back to 2004. Your criminal history includes:
· 13 convictions for possessing or trafficking a drug of dependence;
· multiple convictions for dishonesty and proceeds of crime offences;
· several convictions for violence-related offences;
· 14 convictions for bail-related offences; and
· four contraventions of community correction orders.
67Overall, as I said before, a not insignificant part of your adult life has been spent before the courts.
68You have not previously been convicted of any sexual offence or offences. However, your drug offending does have linkages to the offences currently before me. I will return to this.
Moral culpability, emotional immaturity and Bugmy
69You do not have any knowledge of your biological parents.
70Your adoptive mother is a registered nurse. Your adoptive father worked full-time as a secondary school teacher.
71You had a loving and stable upbringing with your adoptive family.
72Your father, as a secondary school teacher, took a real interest in your studies, encouraging you and tutoring you. To your credit, you completed Year 12 VCE. Your mother cared for you at home and they both support you today.
73There is an important qualification to this outwardly positive assessment of your formative childhood years.
74At around nine years of age, you were sexually assaulted by a close friend of your father’s. You recall that you were at your father’s best friend’s house, who was part of a gay couple, and the partner touched you on your private parts. The same thing happened again later.
75After the sexual abuse, you blocked it out. The first time you told anyone about this was when you were 24 years of age, when you told your aunty. You feel resentment and anger towards the perpetrator of the abuse. You did not feel you could confront him, and you blamed yourself for this abuse. You reported that you did not want to come between your father and the perpetrator. Ms Mynard stated that you feel minimised and dismissed by your parents, who chose to remain friends with the perpetrator until the perpetrator committed suicide.
76The impact which this sexual assault had upon you must be seen within the context of the rejection you felt by reason of your adoption as a child, of which Ms Mynard said the following:
Being in an orphanage in Thailand at a very young age, Mr Llewelyn knew that he had been fed and clothed, however, not being securely attached to anyone in the first two years of life, meant that those early attachment needs for being nurtured and feeling secure in himself had been damaged. This insatiable emotional need to be loved and wanted was an early trauma that Mr Llewelyn had been unable to identify in his life. This led to stunted emotional development, with emotional immaturity, where he struggles to identify emotions, struggles to identify his own internal processes, and has difficulty sharing emotions with others.
77As to the lasting impact of the sexual abuse upon you, Ms Mynard reached the following conclusions:
When he was sexually abused when he was a child, and his parents chose to remain friends with the perpetrator and his partner, this caused
Mr Llewelyn to feel dismissed, confused, and self-blaming. His emotional immaturity also means that he lacks empathy for others, because he is largely fixated or focused on his own needs and wants, and then has little room for ability to notice and be aware of others around him and their processes. This includes the lack of consequential thinking, when he was in a sexual relationship with [the victim], not thinking about consequences for [the victim], himself, or their potential child.
78And later, Ms Mynard observed:
Moral and emotional maturity development can be impacted by sexual abuse and the responses that adults have to the abuse. For Mr Llewelyn, he became confused about his own boundaries and limits, his sexuality, being abused by a man much older than him.
79I am mindful more generally of the lifelong impact which sexual abuse ― even isolated abuse ― can have upon children, which is recognised by the courts. [8]
[8] DPP v Green [2020] VSCA 23 at [81]
80As to the connection between your childhood trauma and your offending Ms Mynard said:
His emotional immaturity has contributed to his offending, with a lack of emotional awareness, impulsivity, lack of consequential thinking. His emotional immaturity has also impacted his offending by identification of his emotional maturity level with the victim.
…
It appears that Mr Llewelyn’s maturity level has more closely matched the victim’s maturity age, and this is how he justified their connection.
81After some discussion at the plea hearing, your counsel resiled from any suggestion that the evidence supported the proposition that there was effectively parity in your emotional maturity (that is, parity between your emotional maturity and that of Ms Freeman); rather your counsel contended the evidence ― when viewed in its entirety ― was to the effect that you were relatively closer in emotional maturity than the objective age difference might suggest.
82Your counsel sought to engage the principles in Bugmy.[9]
[9] Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
83While the sexual abuse which you suffered was undoubtedly traumatic, these were isolated incidents occurring within the context of an otherwise normal, stable and loving home environment. In this sense, your circumstances do not squarely fit within the Bugmy principles.
84While the Bugmy principles initially centred upon an offender’s upbringing surrounded by profound childhood deprivation, they have broader in application than this. As was said in the recent decision of Sabbatuci v The Queen:
Moreover, it will always be a matter for evaluation by the sentencing court whether the circumstances of disadvantage relied on warrant the conclusion that the offender should be viewed, on that account, as less morally blameworthy than another person committing the same offence who did not have the same deprived background. Such a conclusion does not, of course, depend upon the court first being satisfied that the circumstances in question constitute ‘profound disadvantage’ or ‘profound deprivation’. It will be a question of fact and degree in every case. [10]
[10] Sabbatucci v The Queen [2021] VSCA 340, [6]. See also Black v The Queen (2022) VSCA 125 , [27]
85I am persuaded that, irrespective of how it is categorised, the considerations which underpin Bugmy do have some general application to you.
86That is so even if the ameliorating influence on your sentence is not what might attend the extreme cases of a tumultuous upbringing or profound childhood disadvantage.
87It seems to me that the expert evidence establishes that your emotional immaturity has first been impacted by issues relating to your early abandonment and rejection related to your adoption. The sexual abuse committed against you has amplified your emotional immaturity, and your feelings of being needed or wanted. In any event, that sexual offending against you was a traumatic circumstance in your childhood which has had some lasting impact upon you, even if this impact cannot be precisely measured.[11]
[11] DPP v Herrmann [2021] VSCA 160 at [45]. DPP v Green [2020] VSCA 23 at [83]
88These factors provide some context or background to your offending in that they shed light upon:
· the relative difference in your maturity and that of Ms Freeman.
· the way in which you viewed Ms Freeman’s maturity by comparison with your own maturity.
· your motivation in seeking an emotional and sexual connection to Ms Freeman.
· your reduced consequential thinking concerning your actions.
89These factors hovered over your offending, and consequently moderate ― to some extent ― my assessment of your abuse of power and moral culpability. You cannot be precisely equated to someone who had the advantage of an upbringing unmarked by the trauma experienced by you and not afflicted by the consequential emotional deficits you present.
90More specifically, I make allowance for the fact that, in substance, you were closer in emotional maturity than the 20 years’ difference would suggest.
91As your counsel said, this is, and I am quoting from his submissions, ‘a relevant factor [in my] sentencing consideration’.
92That all said, even when some sensible allowance is made for these factors, your moral culpability is still fairly high. You still fall to be sentenced upon the basis that:
· On no view were you close in maturity to the victim; you were always a much older man, and the maturity difference was, in substance, always considerable.
· Your case remains a long way removed from those cases at the lower end of the spectrum of gravity where the victim and perpetrator straddle the age limit.
· You persistently played upon Ms Freemans’ vulnerability and her young age.
Delay
93Your counsel specifically relied on delay as a mitigating factor in the course of your plea, with emphasis being placed upon the period of your remand. More specifically it was submitted that you had spent an unusually long time on remand (being in excess of 400 days) and that this should result in a significant reduction in sentence.
94I will deal with the specific remand point in a moment. I think, however, that I first need to address the broader question of delay.
95The chronology of your matter can be summarised as follows:
§Your substantive sexual offending took place between November 2021 and 21 May 2022.
§You were arrested on 21 May 2022.
§Shortly afterwards you were interviewed twice, and on the second occasion made admissions.
§You were charged and remanded in custody on 21 May 2022.
§On 21 December 2022, you were committed to stand trial, with the matter proceeding by way of a straight hand-up brief.
§Your plea took place on 4 July 2022 and you fall to be sentenced today.
96In my view, there has been no relevant or undue delay. There was no material delay between the commission and detection of these offences and the laying of charges. While I have little evidence of what occurred leading up to your committal hearing, the period of seven to eight months between the time of your committal and your plea hearing is unremarkable. The same could be said of the period of time between the laying of charges and the final disposition of the matter (a little over two years). Justice cannot be immediate.
97Further, the law does not stand for the proposition that delay per se ameliorates the sentence ultimately imposed. The law is concerned with the impact of any delay, namely, whether there has been a lengthy period of rehabilitation; or where a person has had the prospect of punishment hanging over his head for a lengthy period to the point where this is punitive. Those consequences are not seen in your case, at least not to any material or significant degree.
98There is some evidence of rehabilitation but overall this is pretty mixed. I will return to that. For example, whilst in custody for the sexual offence matters, you offended in relation to the same victim by breaching family violence orders. Again, I will return to that.
99I accept that any delay does not need to be inordinate.[12] There must, however, be some material delay. There is no real delay here in the relevant sense.
[12]R v Miceli [1985] 4 VR 588, 591–2.
100I do take into account, in a general way, that you have spent in excess of 400 days on remand. I have no specific evidence concerning the impact this period of remand has had upon you, but I accept that this period is a notable period. As a general proposition, remand can be more challenging than imprisonment. The final sentence brings stability and certainty for the future. I infer that on remand you will not have had access to the opportunities and support structures which will be available to you as a sentenced prisoner.
101Of course, your time served on remand will also be declared.
Insight, remorse and rehabilitation
102Questions of your insight, remorse and prospects for rehabilitation are problematic.
103Having made reference to therapeutic treatment options, trauma-informed counselling, sex offending programmes and alcohol and drug counselling, all of which might be of benefit to you, Ms Mynard concluded:
With these treatment recommendations in place, Mr Llewelyn’s risk of sexual reoffending will reduce significantly. His prospects of rehabilitation are good given that he is able to converse about his reoffending, he has some insight about his mistakes, he is remorseful about his offending (although not fully insightful) and he is willing to undergo rehabilitation and treatment.
104Ms Mynard’s conclusion that your prospects of rehabilitation are ‘good’ must be considered in context: it is internally and heavily qualified by the observation that you still do not have anything near a full understanding of your wrongdoing.
105This is a concern to me. You explained to Ms Mynard that you did not think that your offending was wrong. Although, it was noted that, since being charged, you have an element of uncertainty about this. Nevertheless, you were also dismissive of the victim’s age, saying that it was a consensual relationship, and that she was mature for a 15-year-old.
106There are other findings by Ms Mynard which strongly tell against a positive assessment of your prospects, including that you still present as being low in your moral reasoning, appear to lack moral conscience about your offending behaviour and have very low emotional intelligence and maturity.
107With respect to Ms Mynard, her overall conclusion as to your prospects of rehabilitation does not seem entirely consistent with these findings.
108In any event, it is my duty to reach a conclusion as to your prospects of rehabilitation by taking into account all of the relevant facts and circumstances as they pertain to you.
109You also have a significant drug-related prior criminal history. By your own admission, you were using drugs at the time you maintained an unlawful sexual relationship with Ms Freeman. During the time you were spending together you describe that you were using methylamphetamine 'flat out’ to use your words. In September 2018 you were sentenced to a term of imprisonment of three years for, among other things, recruiting a child to engage in a criminal act and trafficking a drug of dependence to a child. Taken with your present offending, it is abundantly clear that you are unable to respect the clear boundaries that exist between adults and children.
110Your prospects of rehabilitation will depend upon you successfully addressing all these serious emotional deficits and your drug issues. These are longstanding in nature. You have to date not had any successful treatment to speak of, so I have little to go by. You have spoken to a counsellor in Bendigo but described her as ‘cutthroat’. And this leaves your entrenched drug issues which dominate your life when back in the community.
111At present, whether you will be able to address the many issues surrounding your trauma and your emotional deficits, as well as your drug abuse, is far from certain; it sits in the realm of speculation.
112I make allowance for the fact that you have no prior history of sexual offending or sexual offending with minors. Importantly, however, you do have serious priors for drug-related offending generally and concerning children.
113There is also a pattern of breaching family violence intervention orders.
114Multiple terms of imprisonment and community orders have not deterred you from engaging in criminal behaviour.
115Charges 4 to 9 were committed whilst you were serving a community correction order. You were sentenced at the Bendigo Magistrates’ Court on 31 January 2022 to a short term of imprisonment to be followed by a community correction order (CCO) for 18 months. You commenced the community correction order upon your release on 24 February 2022. At the time of the commission of the offences that I have just mentioned, you were the subject of this community correction order. This aggravates your offending, and further raises questions of your likelihood of re-offending.
116Further, as I previously mentioned, you committed the breach of family violence intervention order offences in this case whilst in custody for the instant sexual offending.
117Sadly, your imprisonment history is encapsulated by your response to people when asked how you do gaol so well; you replied that ‘[I am] a veteran.’
118In terms of your risk of re-offending generally, I am pessimistic. I am more positive when solely focussed upon your risk of re-offending in relation to child related sexual offending. I allow for the fact that the instant offending was, to some extent, situational. I also allow for the evidence of the psychologist, Ms Mynard, that you are prepared to undergo treatment. That all said, I still hold real concerns should the situation for this kind of offending present itself to you again, given your emotional, moral reasoning and drug abuse issues.
119Certainly, having regard to all the matters before me, including Ms Mynard’s many assessments of you throughout her report and your prior criminal history, I cannot agree with a conclusion that your prospects for rehabilitation are good.
Guilty plea and remorse
120I turn to your plea of guilty.
121Your counsel submitted that your plea of guilty was entered at a very early opportunity. The prosecution did not cavil with your counsel’s submission. Accordingly, and noting that you entered a plea of guilty at a committal mention, I accept that your plea was entered at a very early stage.
122I accept that your early plea, in combination with the substantial admissions made by you during your record of interview, manifests a willingness on your part to facilitate the course of justice. This is to your credit.
123Your counsel contended that your plea of guilty is demonstrative of your remorse and insight into your offending. I have already addressed my findings on each of these matters. Consistently with your findings, I regard your guilty plea as only giving rise to some remorse – it is qualified by my concerns about your sketchy insight.
124You are, however, entitled to the full weight of the utilitarian benefit of your plea. Your plea of guilty has saved time and resources. Additionally, your plea has spared Ms Freeman the strain of giving evidence, both at committal and at trial.
125The utilitarian value of your plea is enhanced in the current environment, where the criminal justice system ― including this Court ― continues to experience delays and disruptions because of the COVID-19 pandemic.[13]
[13]Worboyes v The Queen (2021) 96 MVR 344, [35]-[36], [39].
126Overall, your plea of guilty is a significant matter that will result in a perceptible amelioration of sentence.
Specific deterrence
127Your extensive criminal history, including your attitude to court orders, means that I must give some weight to specific deterrence. Previous sentences have not been effective in deterring you from further offending.
128In one sense, your criminal history tends to suggest that any sentence I impose on you will have little effect in deterring you from offending generally again in the future. I do not think it has reached that point. The report prepared by Dr Mynard includes recommendations targeted towards reducing your risk of reoffending and rehabilitation. Noting your willingness to undergo treatment, I believe that specific deterrence continues to be of relevance in the sentencing exercise.
129Specific deterrence is especially relevant to the sentences I impose on Charge 9 and Summary Charges 23 and 24 ― the charges concerning the family violence intervention order. You have previously been convicted of contravening family violence intervention orders. The importance of complying with such orders, which has previously been communicated to you through sentences of imprisonment, is something that you are yet to appreciate.
130As I said earlier, whilst I consider your risk of child sexual reoffending to be low, I do hold some concerns. It follows that the sentences I impose on Charges 1 to 8 are intended, in part, to deter you from committing the same or similar offences in the future.
Community protection
131I have already found that the emotional immaturity factors, which I have examined at length, mitigate your moral culpability on the one hand; but on the other hand, they raise serious questions about your prospects of reform, and the need for weight to be given to community protection in the sentencing calculus. Sentencing considerations can pull in different directions. That is so in your case.
132In addition to the matters to which I have just referred about your prior criminal history and about my concerns around your prospects of reform, the prominence of community protection in the instinctive synthesis is amplified in circumstances where you fall to be sentenced, on some charges, as a serious sexual offender, which I will turn to shortly. Before doing so, I will say something about your custodial conditions.
Custodial conditions
133In the Court of Appeal decision of Worboyes v The Queen,[14] the Court made two important statements.
[14](2021) 96 MVR 344.
134The first, which is uncontroversial, is that a plea made while the Court continues to recover from the effects of the pandemic ought to attract a more pronounced discount than a plea entered at a time when the Court is not experiencing those effects. I have already said something about that matter.
135The second statement relates to the more onerous custodial conditions that were in place during the pandemic. The Court of Appeal said that, ordinarily, a sentence imposed on an offender during the pandemic should make allowance for the increased burden, or hardship, of imprisonment.
136On the plea, I indicated that, given we have effectively emerged from the pandemic, I was no longer inclined to take judicial notice of the fact that custodial conditions continue to be as onerous as they were during the height of COVID-19. To do so would be complete speculation.
137Since the plea, I have received a letter from the Assistant Commissioner Jenny Hosking dated 14 August 2023.
138This letter confirms that as of effectively February of this year, there are no longer onerous conditions imposed on a routine basis related to the COVID-19 pandemic. For example, prisoners are no longer required to quarantine upon reception, all service providers have returned to the prison for face-to-face delivery and in-person visits have fully resumed.
139In her letter, the Assistant Commissioner has also detailed the circumstances in which you have been serving your period of remand, which, as I have said earlier, at the time of the plea was in excess of 400 days and is even more so today. This includes two periods of COVID-19 related lockdowns between 18 July and 31 July 2022 and 10 August to 22 August 2022. You have also experienced periods of protective and/or transfer quarantine at the Metropolitan Remand Centre. There were also occasions where you placed within a protection unit. I take these matters into account.
Standard sentence scheme
140The offence of sexual penetration of a child under 16 is a standard sentence offence.[15] Accordingly, the standard sentencing scheme applies to Charges 1, 2, 4, 5, 6 and 7.[16] I have considered the standard sentence in arriving at the sentences which I will impose.
[15] Crimes Act 1958 (Vic) s 49B(3).
[16]Sentencing Act 1991 (Vic) ss 5A and 5B.
141The standard sentence for each of those charges is six years’ imprisonment. The standard sentence is, however, not a starting point from which I add and subtract time based on the aggravating and mitigating features particular to your offending and to you. Rather, I am to treat the standard sentence of six years as a legislative guidepost, much like the maximum penalty ― it is simply one of the many relevant matters I must consider, and put into the mix, to arrive at an appropriate sentence. [17]
[17]McPherson v The Queen [2021] VSCA 53, [31].
Serious sexual offender
142You are to be sentenced as a serious sexual offender on Charges 3, 4, 5, 6, 7 and 8.[18]
[18]Sentencing Act 1991 (Vic) ss 6B(2) and 6C(1); sch 1 cl 1
143Your status as a serious sexual offender has two consequences. I will deal with each in turn.
·First, I must regard the protection of the community as the principal purpose for which the sentences on Charges 3, 4, 5, 6, 7 and 8 are to be imposed.[19] To achieve that purpose, I am empowered to impose a disproportionate sentence.[20] I have determined, however, that it is not necessary to impose a disproportionate sentence ― on any charge ― in your case. The prosecution did not urge me to do so. And, in any event, I am of the view that the objective of community protection can be accommodated without the need to impose disproportionate sentences.
· Secondly, unless I otherwise direct, the sentences on Charges 3, 4, 5, 6, 7 and 8 are to be served cumulatively on each other and cumulatively upon Charges 1 and 2.[21] I will otherwise direct and I will return to this issue shortly.
[19]Sentencing Act 1991 (Vic) s 5(a).
[20]Sentencing Act 1991 (Vic) s 5(b).
[21]Sentencing Act 1991 (Vic) s 6E.
Current sentencing practice
144I have also had regard to current sentencing practice for each of the offences.[22]
[22]Some of these decisions referred to by counsel are of limited utility in this case, given the effect of s 5B(2)(b) of the Sentencing Act 1991 (Vic).
General deterrence and public denunciation
145Finally, general deterrence and public denunciation are sentencing considerations which must always loom large in the sentencing exercise for child sex offences. And so it is in relation to my sentence of you, Mr Llewelyn, although I make some moderation to general deterrence in the light of the application of the Bugmy type principles which I have discussed above. Before imposing sentence I just wanted to say one more thing concerning the interrelationship of the sentences I impose.
Interrelationship of sentences and double punishment
146Having regard to the interrelationship between the sexual penetration charges and the charges for producing child abuse material, I am cognisant of the need to avoid imposing a sentence that would have the effect of punishing you twice for the same conduct.
147I am also conscious that Charges 4 and 5 occurred over the same night.
148I am also conscious that in most respects your offending falls within or is comprised by one course of conduct involving the one victim. I must impose a just and appropriate sentence and I must avoid a crushing one.
149My sentence and my orders for concurrency will reflect these matters. Mr Llewelyn, I am now turning to the sentences which I pronounce and as I do that, I will have my associate hand to counsel a table of those sentences so they can follow it.
150On Charge 1, sexual penetration of a child, you are sentenced to 3 years and 9 months' imprisonment.
151On Charge 2, sexual penetration of a child under the age of 16 years, you are sentenced to 3 years and 9 months' imprisonment.
152On Charge 3, producing child abuse material, you are sentenced to 10 months' imprisonment.
153On Charge 4, sexual penetration of a child under the age of 16 years, you are sentenced to 4 years' imprisonment.
154On Charge 5, sexual penetration of a child under the age of 16 years, you are sentenced to 4 years' imprisonment.
155On Charge 6, sexual penetration of a child under the age of 16 years being a rolled up charge, you are sentenced to 4 years and 6 months' imprisonment. That will be the base sentence.
156On Charge 7, sexual penetration of a child under the age of 16 years, you are sentenced to 4 years' imprisonment.
157On Charge 8, producing child abuse material, you are sentenced to 10 months' imprisonment.
158On Charge 9, persistent contravention of a family violence protection order, you are sentenced to 12 months' imprisonment.
159On summary Charge 23, contravening a family violence intervention order, you are sentenced to 14 days' imprisonment.
160On summary Charge 24, contravening a family violence intervention order, you are sentenced to 3 months' imprisonment.
161On summary Charge 26, dealing with property suspected of being the proceeds of crime, you are sentenced to 1 month imprisonment.
162I make the following orders for cumulation. As I said earlier, the sentence on Charge 6, being 4 years and 6 months, will be the base sentence. I direct that the following periods be served cumulatively upon the sentence imposed on Charge 6 and upon the sentences imposed on the other charges. On Charge 1, the cumulation I direct is 3 months. On Charge 2, the cumulation I direct is 3 months. On Charge 3, I direct 1 month cumulation. On Charge 4, the cumulation I direct is 4 months. On Charge 5, the cumulation I direct is 4 months. On Charge 7, the cumulation I direct is 6 months. On Charge 8, the cumulation I direct is 1 month. On Charge 9, the cumulation I direct is 2 months. This makes for a total effective sentence of 6 years and 6 months' imprisonment. I will impose a non-parole period of 4 years and 6 months.
163I declare that the pre-sentence detention is 460 days, including today.
164As for the s 6AAA statement, but for your plea of guilty I would have imposed a total effective sentence of 9 years' imprisonment with a non-parole period of 7 years.
Sex offender registration
165This leaves the question of the Sexual Offender Registration. Mr Llewelyn, the Sex Offenders Registration applies to you, that is under the Sex Offenders Registration Act 2004 (Vic). You have committed six Class 1 offences and two Class 2 offences. Accordingly, you must comply with your obligations under that Act for life.
166I note that your status as a serious sexual offender will be entered in the Court records.
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TABLE OF SENTENCES
| Charge | Offence | Max Penalty | SSO[23] | Sentence | Cumulation |
| 1 | Sexual penetration of a child under the age of 16 years | 15 years’ imprisonment | 3 years and 9 months’ imprisonment | 3 months | |
| 2 | Sexual penetration of a child under the age of 16 years | 15 years’ imprisonment | 3 years and 9 months’ imprisonment | 3 months | |
| 3 | Producing child abuse material | 10 years’ imprisonment | Y | 10 months’ imprisonment | 1 month |
| 4 | Sexual penetration of a child under the age of 16 years | 15 years’ imprisonment | Y | 4 years imprisonment | 4 months |
| 5 | Sexual penetration of a child under the age of 16 years | 15 years’ imprisonment | Y | 4 years imprisonment | 4 months |
| 6 | Sexual penetration of a child under the age of 16 years (Rolled-up charge) | 15 years’ imprisonment | Y | 4 years and 6 months’ imprisonment | Base |
| 7 | Sexual penetration of a child under the age of 16 years | 15 years’ imprisonment | Y | 4 years’ imprisonment | 6 months |
| 8 | Producing child abuse material | 10 years’ imprisonment | Y | 10 months’ imprisonment | 1 month |
| 9 | Persistent contravention of a family violence protection order | 5 years’ imprisonment | 12 months’ imprisonment | 2 months | |
| Summ. Charge 23 | Contravening a family violence intervention order | 2 years’ imprisonment | 14 days’ imprisonment | ― | |
| Summ. Charge 24 | Contravening a family violence intervention order | 2 years’ imprisonment | 3 months’ imprisonment | ― | |
| Summ. Charge 26 | Dealing with property suspected of being the proceeds of crime | 2 years’ imprisonment | 1 month imprisonment | ― |
[23] Serious sexual offender.
Total Effective Sentence: 6 years and 6 months Non-Parole Period: 4 years 6 months Pre-sentence Detention Declared: 460 days Section 6AAA Statement: Total Effective Sentence: 9 years
Non-Parole Period: 7 years
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