Director of Public Prosecutions v Lobley

[2015] VCC 1211

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

AT BAIRNSDALE
CRIMINAL JURISDICTION

CR 15-01100

DIRECTOR OF PUBLIC PROSECUTIONS

v

JARED LOBLEY

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Bairnsdale
DATE OF HEARING:	18 September 2015
DATE OF SENTENCE:	21 September 2015
CASE MAY BE CITED AS:	DPP v Lobley
MEDIUM NEUTRAL CITATION:	[2015] VCC 1211

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Cecil	O.P.P
For the Accused	Mr S. Gardner	Wards Barristers & Solicitors

HIS HONOUR: 

1Mr Lobley, you have pleaded guilty to one count, of sexual penetration of a child under the age of 16, maximum penalty ten years' imprisonment.

2The complainant in the matter, was a local girl at Cann River aged under 14 at the time of the offending, and on three occasions, you had sexual intercourse with her.  The single count is representative of the three acts. After the first or second occasion, you were warned off her by her mother prior to that, and also by the local police officer.  Yet despite that, you persisted to have the intercourse with her.

Circumstances of the offence

3I incorporate the full circumstances of your offending by reference in the Crown opening, which was read in open Court on the plea.  The circumstances of the relationship between you and her were that it did appear that it was not an exploitative relationship, although there was a four year age difference between the two of you, and you had been warned, as I said, by her mother and the police, yet for whatever reason you succumbed to having intercourse with her on these three occasions, and for that you have pleaded guilty.

4Needless to say, her mother was underwhelmed by your action and her victim impact statement, which I must take into account, indicates the level of concern and distress that her mother had, trying to protect her daughter, get her away from you, and maintain her own household, and it really reeks of concern that she has put in her victim impact statement.  I have read the statement, and I take it into account.

5And I say, the pain that she has found herself in trying to protect her daughter from the emotional bond between the two of you has ruined her couple of years over this period, and when she had just had another baby, and she says that exactly in her statement, where she says, "This whole ordeal has really ruined a part of my life.  It should have been a happy time with a new baby.  Me and my partner felt sick at the thought of him coming back to town, and all those intense emotions coming back into our life."

6And she notes in the victim impact statement, which she was only made last week, that the complainant in this matter has new friends and new aspirations, and she has been able to attain them by you not being in her space, "And my anxiety is calming."

7So you are still a young man.  You were 18 at the time of this offending; you have now just turned 20. Mr Joblin indicates that you are a thoughtful person, and he forms a view that you are not at risk of sexual predation of other people, and this did not involve sexual predation, and that he was basically optimistic about your future in the community, and that you really would not benefit by any form of supervision in any form of sanction.

8Also in evidence was a report from Ms Kerry Hymes, who is a psychologist up in Merimbula.  She has seen you on a number of occasions, discussed various relationship matters, and she indicates that you evidence leadership qualities in your rhetoric, and you have shown an ability to learn and to decide to improve community relationships.

9And there is a further reference or a statement from Ms Davison, a social worker at the Bega Community Health, and she indicates that you are not evidencing any suicidal ideation, you are future-oriented and presented with a positive affect.

The seriousness of the offence

10The community expects that the courts will try and protect girls from underage sexual activity.  Unfortunately, on many occasions it happens with males that are in their age group or older than them, but within the local community. It is very hard for parents to force children to cease this type of activity, and that is what has happened on this occasion.  In sentencing you, I must vindicate the complainant and also indicate the community does not tolerate this type of action.

11In a powerful plea, your counsel has indicated that as a result of this offending, police imposed an IVO, an intervention order on you, which meant that you could not be within five kilometres of the complainant.  You had left school during year eleven, you worked at a number of jobs in the Cann River community, but then your parents moved up to Tura Beach in New South Wales, and then you had a job in the local sawmill, but because of the IVO conditions, you had to leave that job after a period of five weeks, and relocate to Tura Beach.  Since that time, you have been unemployed.

12So as a result of the intervention order in the sequelae of being charged, you have suffered some punishment already, and I have taken that into account.  Not only that, you complied with the intervention order, and ceased and desisted from being in contact with the complainant.

13In sentencing you, in a sense I have got to resolve the community interest in vindicating the complainant, punishing you, and encouraging your rehabilitation.  Your counsel in his plea pointed out that you were just over 18 at the time of the offending; you are now under 21, so you are a young person for the purposes of sentencing, and the authorities say that rehabilitation is the most important sentencing consideration for offenders of your age.

14And it definitely is in this case.  It is obvious that you do have potential, and you have shown, as indicated by Mr Gardner, that you have got a good work ethic.  You have obviously got that from your father, and that is good.  Leaving school at age 16 is not a good look, so you need to reflect on that, but as Mr Gardner has pointed out, this was not a case of taking advantage of a younger girl for purely sexual gratification; it was a sort of developing emotional relationship which, as he indicating in the relevant questions in the record of interview, did involve some reciprocity by her.

15So the question is, what is an appropriate disposition in these circumstances? I have been helped by some very helpful submissions by Mr Cecil, who is the acting prosecutor in this circuit, and in particular the limitations in relation to the use of community corrections orders in a circumstance where you are now residing in New South Wales.

16One important factor that is identified by Mr Joblin is that you do not have any other criminogenic behaviours.  In other words, you did not use alcohol or drugs to exploit this girl, or pornography, that type of thing.  So that indicates that you do have a good basis to move forward into adulthood, and the disposition of the court should encourage that, and hope that you can put this lapse behind you and move into adulthood, hopefully with some education.

17And as your counsel submitted, specific deterrence is not a major factor in the circumstances, where you have now been prepared to comply with the IVO for the last six months, plus agreed to in fact not contact the complainant for a period of two years without her mother's permission.

18So Mr Cecil indicated that, in some of these cases, a sentencing disposition might be a sentence of imprisonment, but on others the focus should be on some lesser sanction, and in your case, in circumstances where you have moved to New South Wales and it is difficult to register a community corrections order interstate, and in any event, as Mr Joblin has indicated, you do not really require sex offender treatment or admission to a sex offender course in order to move forward.

19So in those circumstances, I have acceded to Mr Gardner's submission that some lesser sanction is the appropriate disposition.  And it will be quite an onerous sanction, in the sense that it is for a period of two years, and you have just got to keep out of Cann River, which will mean you will have to find a different job than the one that was proposed, certainly while the complainant is in Cann River.  And is for a period for two years, which means she will be 18 at that point, and then the law deems her an adult and not in need of protection.  And it also satisfies the anger and anguish of her mother in the proposed disposition.

20You have indicated that you are prepared to consent to an adjournment of this matter for a period of two years, and I am prepared to do that.  It will be on a condition that you attend at this Court, unless not required to do so, on the anniversary of the two year period.

21And in addition to this, be of good behaviour for that two year period, so that means if you commit an offence carrying a term of imprisonment between now and - well any offence - you will breach the good behaviour bond aspect of the adjournment, and then you will be brought back to be dealt with for whatever you have done, plus the breach of the undertaking you have given me that you are going to be of good behaviour for two years.

22Now, an important factor that Mr Gardner put on your behalf is that in fact, they are not alleging any prior convictions against you, so you have got to age 20 without being dragged before a court, and so one can be reasonably confident that you should be able to continue that for the next two years, but it is still there hanging over your head.

23An additional condition, as I indicate, is that you do not go within five kilometres of Cann River, except when you are transiting through Cann River.  And a further condition is, you are not to contact the complainant, save and except with the written consent of her mother.

24So, as I say, they are onerous conditions, but they will reconcile the competing need to vindicate the complainant, punish you, and to encourage your rehabilitation moving on to adulthood, with someone who is not underage, and be a productive member of the community, which as I indicated, it is free advice that you really need to finish off your education.

25Because it is clear from the two psychological reports that you are a not unintelligent man, and it is unfortunate you left school during year eleven, but it is not uncommon in country towns where there may not be that peer group encouragement to keep people at school until they complete year twelve.

26Now, in addition to the adjourned undertaking, as a result I am not prepared to enter a conviction against you.  I am giving you this one chance, and you have indicated by your conduct to date - I know there is something coming up about the use of a firearm, but that was post this offending - but you have been the chairman of the local bowls club, and on the committee of the local hall.  That shows, even though you are only 20, or 18 at the time, you were putting into the community, and you are entitled to some credit for that, plus your good behaviour.

27You come from a good family.  You have got the support of your father, and your mother, who unfortunately cannot be here today.  So all those matters would indicate that with your own effort, you will not be back in a court either here or in New South Wales again.

28In addition, as a consequence of this appearance, you are on the Sex Offender Register for 15 years.  Now that is not a punishment, but I have got to advise you of your obligations under that, - no doubt your counsel, and I ask Mr Gardner to again reinforce this - it is an onerous set of obligations that Parliament have put in place in relation to sex offenders, and you are on it for 15 years, which means that you have to advise of a change of mobile phone; advise of a change of address; advise of moving interstate; getting a car license; changing your car etc.

29You name it, it is all there.  So it requires a fair bit of personal discipline over that period.  Internet address.  You name it, as I say, it is an onerous obligation that is designed to ensure that everyone knows where you are.  I am satisfied on the basis of Mr Joblin's report that you are not a major threat to the community, but that is a consequence of it, and there is nothing I can do about that.

30In addition to that, I have ordered with your consent that you provide a saliva sample within 28 days to the police down at Mallacoota.  And that requires you to give them a saliva sample, and that will go onto the database.

31I have also, with your consent, ordered the forfeiture of the Samsung phone that you have been using to contact the complainant.

32I have decided not to enter a conviction against you on the basis that I see that as potentially impairing your rehabilitation back into the community, and indeed your career, whatever it may be.  You are 20; you have not really got a career at the moment, but you have got to get one sometime, so I have taken that into account and decided I will give you this one opportunity.

33You are drawing on your good behaviour in the past.  You are drawing on the circumstances of the offending for that disposition.

34I have got to declare that, pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty, I would have convicted you and imposed a community corrections order on you.

35You will get a copy of all these documents to take home with you, and I suggest you look around in the South Coast of New South Wales for a job, but you cannot come into Cann River to get a job.  Any other matters, Mr Cecil?

36MR CECIL:  Only one minor matter, sir.

37HIS HONOUR:  Yes?

38MR CECIL:  I believe you may have overlooked advising him that reasonable force may be used if he doesn't give the oral swab.

39HIS HONOUR:  That is true.  They are entitled to use reasonable force to get this saliva sample, so I have got to advise you of that.  All right.  No other matters?  No other matters?

40MR CECIL:  No.

41MR GARDNER:  Nothing, Your Honour.

42HIS HONOUR:  Well I want to thank you for your assistance today, Mr Gardner on the plea, and also thank you Mr Cecil for your assistance on the plea.  And adjourn it until 11 o'clock tomorrow morning.

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