Director of Public Prosecutions v Mackintosh

[2018] VCC 1458

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00767

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACK MACKINTOSH

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	6 September 2018
DATE OF SENTENCE:	7 September 2018
CASE MAY BE CITED AS:	DPP v Mackintosh
MEDIUM NEUTRAL CITATION:	[2018] VCC 1458

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Persistent sexual abuse of a child under 16; Using a carriage service to transmit indecent communication to a child under the age of 16; Exceptional circumstances; Illness and disability of offender; Moral culpability of offender reduced by condition and illnesses.

Legislation Cited: Sex Offenders Registration Act 2004 (Vic), Crimes Act 1914 (Cth), Sentencing Act 1991 (Vic).

Sentence:(Charge 1) Five year Community Corrections Order

(Charge 2) Three months imprisonment released forthwith upon entering into recognizance for the sum of $2,000 and agreeing to comply with condition to be of good behaviour for period of two years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Martin	Office of Public Prosecutions
For the Accused	Ms M. O'Brien	MDM Lawyers

HIS HONOUR: 

1Jack Dylan Mackintosh, you have pleaded guilty to one count of persistent sexual abuse of a child under the age of 16 and one count of using a carriage service to transmit indecent communication to a child under the age of 16.  I should say at the outset of these sentencing remarks that I have concluded that this is an exceptional case justifying an exceptional disposition.

2A comprehensive understanding as to the reasons for that conclusion requires careful examination of these reasons in combination with the evidence and exhibited material relied upon on the plea.  In particular the summary of prosecution opening, the victim impact statement, the medical-psychological reports, the references and counsel's submissions.

3The prosecutor, Ms Holmes, tendered a summary of prosecution opening on the plea, which is Exhibit A and I will annex to these reasons a copy of that opening which details your offending.  However, I should briefly summarise your offending as follows.  You were 22 years of age at the time of your offending.  The complainant who, for the purposes of these remarks, I will describe as AB, was 14 years of age.

4The complainant here is anatomically female but identifies as male.  He was, at the relevant time, in the care of the Department of Health and Human Services and lived in residential care.  You first met AB using the mobile telephone application, Grindr.  That application is used by adult homosexual and bisexual males seeking to meet other males for sexual activity and relationships.

5You started exchanging text messages with the complainant during April 2017.  Before meeting the complainant you did not know he was under 16; however, he told you he was 14 at your first meeting with him.  The first charge comprises nine acts of sexual penetration that took place between 6 May 2017 and 3 June 2017.  In May of that year, the complainant stayed at your parent's house where you were then living, whilst they were away on holiday in Indonesia.

6Over the three-day period you engaged in oral, vaginal and anal acts of penetration.  On most, if not all of those occasions, you consumed alcohol with the complainant.  On 24 May 2017, you visited the home of a friend of the complainant in Moe.  After drinking alcohol with the complainant you engaged in two acts of penile-vaginal penetration with him.  On 2 June 2017, you booked a room at a hotel in Thomastown and again, after drinking alcohol, engaged in penile-vaginal sex with the complainant.

7On 14 July 2017, police executed a search warrant at your home and seized your mobile phone.  An analysis of the phone revealed communications between you and the complainant over the period 27 May 2017 to 16 June 2017.  Although much of what was in the conversations was of a general nature, there was also sexually explicit discussion about what you and the complainant might do to each other sexually.  There was also a text message discussing having a child together.  You also sent several pictures of your erect penis to the complainant. That conduct constitutes Charge 2 of the indictment. 

8When interviewed on 14 July 2017, you made some initial denials and then made no comment.  Significantly, however, soon after you were charged in early 2018, you indicated that you would accept the complainants account in whole and plead guilty to an appropriate indictment reflecting what the complainant alleged.

Impact of offending

9The complainant provided a victim impact statement which was tendered as Exhibit B.  Clearly AB was a vulnerable young person who feels that you took advantage of him.  He says you made him feel that what occurred was right or normal, even though it was not.  He says you pressured him on some occasions to drink alcohol when he did not want to.  He says he now feels less trusting of older males and you have clearly left him feeling confused and psychologically damaged by this experience.  That is an important matter that I must consider in formulating sentence.

Personal circumstances

10You were born on 23 July 1994, and are now 24 years of age.  You come from a caring and supportive family.  Your father works as a storeman, your mother as a primary school teacher.  You grew up in the Airport West area and attended Tullamarine Primary School, where your mother worked and also attended the Gladstone Park Secondary School, where you eventually completed year 12 VCAL in 2013.

11You have not worked in paid employment since finishing school.  You have, however, done some volunteer work assisting as a teacher's aide at your mother's school.  You still live with your parents and in many respects remain dependent on them.  You have suffered from a myriad of life-threatening illnesses from an early age.  The point made by your assessing and treating forensic psychologist, Mr Tim Watson-Munro, is that your constant struggle to live your life has had a profound effect on your psychological development. 

12You were diagnosed with juvenile chronic myeloid leukaemia when you were two years of age.  Your mother, who gave impressive evidence on the plea, described how your parents were told that you would probably die from that illness.  You recovered for a short time but the illness recurred and you had to undergo a bone marrow transplant in 1997.  Your mother was the donor.  Unfortunately, you developed serious complications arising from the transplant, including graft versus host disease which effected your skin and mucus membranes.

13In 1999, you contracted a pneumococcal infection resulting in you going into intensive care and suffering a right-sided stroke leaving you with left hemiparesis and significant restriction of movement down the left side of your body including your left elbow, wrist and fingers.  The infection also left you with a severe obstructive lung disease and you developed significant problems with dry eyes secondary to the graft versus host disease and you now have a severe visual impairment which greatly limits your ability to function in normal light conditions.

14There are a number of other serious ailments from which you suffer, not least of which includes gastrointestinal dysfunction.  Your illnesses necessitated significant periods of time in The Royal Children's Hospital and, as I indicated earlier, your normal psychological development was therefore greatly impaired.  Your education was dislocated by the time you needed to recover and cope with these illnesses.  Your ability to form meaningful relationships with peers was greatly inhibited.  You were never really able to form lasting friendships.  You have been unable to find work and therefore have not had that social outlet.  You are in constant need for medical monitoring and management.

15Throughout your life and, relevantly, at the time of your offending, you suffered from chronic loneliness, isolated and, beyond your family, lacked any meaningful companionship.  You would apparently spend most days alone with little to do.  I also note Mr Watson-Munro's conclusion after conducting some testing with you that you suffer from a severe and recurring depressive disorder which I infer was operative at the time of your offending.  The circumstances I have just set out provide the setting within which you committed these offences.

16Having regard to those matters, I am well satisfied that your medical history has severely impacted your psychological development and I am persuaded that your judgment in respect of the appropriateness of the relationship you engaged in with the complainant was impaired by the illnesses and conditions to which I have referred.  Your moral culpability for this offending should be reduced significantly by reason of those matters.  Further, the need to emphasise general and specific deterrence should, in my view, also be reduced by reason of your disability.

17I further accept that there is a serious risk that imprisonment would have a significant adverse effect upon you.  Mr Watson-Munro formed the view that you have developed, through your treatment with him, an insight into the wrongfulness of what you did.  He says you would clearly benefit from further psychological treatment.  You are fortunate to have the support of your family and these matters in combination, in my view, enhance your prospects for rehabilitation.

18I also have the benefit of eight personal references tendered on your behalf which attest to your remorse for this offending and eloquently support the submissions of Ms O'Brien, who appeared on your behalf, and I note that the authors of five of those references attended court in support of you.  You yourself wrote a letter which was provided to the court, which puts your position as follows.  And I quote:

"I'm writing this letter to let you and everyone involved in my case know that I am really sorry for what I have done.  I should have realised how vulnerable my victim was and am deeply remorseful for my actions. 

At the time of my offence I was feeling very lonely and depression was something I often felt.  I am not able to speak confidently to people, so I can't make new friends easy.  I cannot socialise with new people, as I find it hard to know what to say.  I know what I did was wrong and am taking actions to change my life for the better. 

I've been seeing a psychologist and now realise the impact of my actions.  I want to continue with my treatment so I can get my life back on track.  I have joined a gym to give me a reason to get up in the morning.  Again, I am truly sorry for the trauma I have caused and want you to believe it will never happen again."

Submissions

19Ms O'Brien acknowledged the seriousness of this offence generally and of your offending in particular.  She argued that the exceptional nature of your personal circumstances and the context in which this offending arises creates a truly exceptional situation which enables the imposition of a lengthy Community Corrections Order.

20Ms Holmes, who appeared on behalf of the prosecution, also pointed to the seriousness of the offending and referred in particular to the vulnerability of the complainant and the effect that this offending has had on him.  However, on behalf of the state Director, she did not oppose the imposition of a lengthy Community Corrections Order in the exceptional circumstances constituting this case.

21This afternoon, you were assessed by an officer from the office of corrections as to your suitability to be placed on such an order.  The report that has been provided to me indicates that you are suitable for such an order.  Accordingly, I propose to convict you and place you on a Community Corrections Order for a period of five years from today's date.  There will be, with respect to that order, what are called the normal core conditions and there will be some special conditions attached to the order.

22I need to say something about, first of all what those core conditions are.  If you would listen carefully Mr Mackintosh.  The order will require you to promise not to commit another offence for which you could be imprisoned.  It requires you to comply with any obligation or requirement under the sentencing regulations that you receive and report to as directed to a delegate of the Secretary to the Department, that you report to the community corrections centre within two clear working days of the order starting, that you let the office of corrections know within two clear working days of you changing your address or your job and you must not leave Victoria without first getting permission to do so from the Secretary or his or her delegate and you must obey all lawful instructions from, and directions of the Secretary or his or her delegate.  Now, they are the, what we call the core conditions, Mr Mackintosh.  Do you understand what I have said thus far?

23OFFENDER:  Yes.

24HIS HONOUR:  In addition to those mandatory or core conditions, there are some special conditions which I will impose on this order and to which you must agree.  The first is that you perform 300 hours of unpaid community work over a period of five years as directed by the regional manager.  I will order that 100 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

25If you fail to comply with this order, the Secretary to the Department of Justice or his or her delegate may give you a direction to perform additional hours of unpaid community work in accordance with s.83AU of the Sentencing Act 1991 (Vic). The final condition on this order will be that you must participate in programs and or courses that address factors relating to your offending as directed by the regional manager of the office of corrections, to which you will report. Now, the first thing I have to say to you about this order, Mr Mackintosh is ask you whether you understand what is proposed. Have you heard what I have explained with respect to it and do you understand it?

26OFFENDER:  Yes.

27HIS HONOUR:  And if you need to you can speak with your counsel about this.  But the order requires your consent and it is important that you understand in considering whether to consent to the order, that if you breach the order you would need to be brought back before me for the breach of that order.  And that at that time you would be liable to be dealt with for the original offences for which the order was imposed.  Do you understand that?

28OFFENER:  Yes.

29HIS HONOUR:  So, it is very important that you comply and that you understand that, when you promise to do so.  Now, having said all that, Mr Mackintosh, do you wish to undertake this order?

30OFFENDER:  Yes.

31HIS HONOUR: Yes. In a moment you will be asked to sign some documents and if you need to speak with your counsel for the purpose of doing so, you will need to do that. But before proceeding further, I need to say something about the second charge on the indictment. In respect of that matter, what I propose is that you be convicted and pursuant to s.20(1)(b) of the Crimes Act 1914 (Cth), that you be sentenced to a term of three months' imprisonment. However, I will direct that you be released forthwith upon you entering into a recognisance in the sum of $2,000 for a period of two years.

32Now, it is necessary that I explain that proposed order to you as well,
Mr Mackintosh.  Essentially what is proposed in respect of that second charge is that you make a promise and that the promise be that you, for the next two years, will be of good behaviour and that if you are of good behaviour, you will be discharged from the recognisance.  If you are not of good behaviour then you will be liable to pay $2,000.  You do not have to pay that now but you would if you were in breach of the recognisance.  And you may be at risk of serving for three months' imprisonment, which would be held in abeyance during that two-year period.  Do you follow that?

33OFFENDER:  Yes.

34HIS HONOUR:  So, again, you would have to understand that you would be liable to those penalties if you committed further offences.  Now, I should also explain that but for your plea of guilty, I would have sentenced you to a total effective sentence of five years' imprisonment, with a non-parole period of three years.  And I make such a declaration under 6AAA of the Sentencing Act.

35Now, finally, I need to make an order, which I am required to make having convicted you of the first offence on the indictment.  And that is that, pursuant to the Sex Offenders Registration Act 2004 (Vic), you will be registered under that act for the remainder of your life. That is a mandatory requirement of conviction for this offence. So, those are the proposed order counsel. Are there any concerns or difficulties arising from those proposed orders?

36MR MARTIN:  There is not but a forensic sample order was sought as well, Your Honour.

37HIS HONOUR:  Yes.

38MS O'BRIEN:  I can indicate it is not opposed, Your Honour.

39HIS HONOUR:  Thanks very much, Ms O'Brien.  I do not have the draft order, I am afraid, Mr Martin.  Do you have a copy handy?

40MR MARTIN:  I might do, Your Honour.

41HIS HONOUR: Yes. Perhaps I would ask you to try and find that. But the other matter that was of some concern was to have the recognisance release order drafted pursuant to s.20(1)(b), not (1)(a).

42MR MARTIN:  Yes, Your Honour.

43HIS HONOUR:  Yes.  I will hand down to - for Ms O'Brien if I can - thanks
Mr Carlisle - the community corrections order.  And once you have checked, Ms O'Brien, the best thing, perhaps, is to ask your client to come forward out of the dock ‑ ‑ ‑

44MS O'BRIEN:  Yes, Your Honour.

45HIS HONOUR:  ‑ ‑ ‑ and to have that order signed.  But we will need to have the recognisance release order sorted out as well.  Is that something that can be drafter there on the ‑ ‑ ‑

46MR MARTIN:  I understood it was emailed to Your Honour's associate?

47HIS HONOUR:  Look there is one that was here but it is an order that ‑ ‑ ‑

48MR MARTIN:  There was a second one sent through which was the 1A but my instructor does have the 1B which she could forward to Your Honour's associate now.

49HIS HONOUR:  Yes, well that would be useful I think if that could be done.

50MS O'BRIEN:  Your Honour, if Mr Mackintosh could come forward and I will have him sign ‑ ‑ ‑

51HIS HONOUR:  Just wait a moment if you wouldn't mind, Ms O'Brien ‑ ‑ ‑

52MS O'BRIEN:  Sure.

53HIS HONOUR:  ‑ ‑ ‑ because we will try and do the recognisance at the same time.

54MS O'BRIEN:  At the same time.  Thank you, Your Honour.

55HIS HONOUR:  This is a class 1 offence under the SORA legislation, Mr Martin, is that right?

56MR MARTIN:  That is my understanding, yes, Your Honour.

57HIS HONOUR:  Yes, I think that is right.  The sex offender registration order will be attached to Charge 1.  No order will be made with respect to the second charge unless it is required but my understanding is that it is not.  But if you want to say differently, Mr Martin, you can let me know.

58MR MARTIN:  I understand that recognisance order has been emailed to Your Honour's associate.

59HIS HONOUR:  Thank you very much.  Mr Martin, I note that the second charge on the indictment is a class 2 offence for the purposes of the Sex Offenders Registration Act but given that the order is being made with respect to Charge 1 and the, say, mandatory requirement of life registration, is it necessary to make any further order with respect to Charge 2?

60MR MARTIN:  No, Your Honour.

61HIS HONOUR:  It seems superfluous but ‑ ‑ ‑

62MR MARTIN:  Yes.  I might recant what I just said Your Honour.  Just, in the event somewhere down the track that the first charge got appealed somehow, if the second charge could also then be placed on the SORA as well unfortunately.  Otherwise I believe our records section will come back to us on another day and ask that it be done.

63HIS HONOUR:  Just bear with me a moment then.  For the assistance of counsel, the sex offender registration documents refer to the CR number and refer to the mandatory life reporting requirement.  And the system records it as attaching to both offences.  I think, Mr Martin, that is sufficient for your purposes.

64MR MARTIN:  Yes, Your Honour.

65HIS HONOUR:  If there are difficulties then it can be brought back before me but I do not expect there should be.

66MR MARTIN:  No, I agree with that, Your Honour.  I also have the forensic sample orders for Your Honour to sign as well.

67HIS HONOUR:  Yes, all right.  I wonder if you might get those for me.  Thanks, Mr Carlisle, that is the CCO - another copy of the CCO there.  Mr Mackintosh, there is one further matter I need to explain to you and it is this, that I am going to make an order that you provide a forensic sample to the police.  Your counsel on your behalf has consented to such an order.  And what it means is that if you were not to consent when the police asked you to provide a mouth sample, what is called a buccal sample, an authorised member of the police force then can take a blood sample from you and they may use reasonable force to enable that procedure to occur if you did not consent.  Do you understand what I have just said?

68OFFENDER:  Yes.

69HIS HONOUR: You have consented to such an order and my duty is simply to explain what the effect of that is. I think you understand it. So, pursuant to s.464ZF(2) of the Victorian Crimes Act, I will order that Mr Mackintosh undergo a forensic procedure for the taking of a scraping from the mouth and or blood sample in accordance with subdivision 30A of part 3 of the Crimes Act until a sample of sufficient standard is obtained for placement on the database.  I will sign all of those draft orders, Mr Martin.

70MR MARTIN:  As Your Honour pleases.

71HIS HONOUR: I will hand the orders down. Just, sorry, bear with me. I will just put this - is that three months? I will just hand this document down to you if I can, Mr Martin. If you wouldn't mind checking it. The intention is to not have the defendant serve three months but rather to release them forthwith but with a three-month term of imprisonment suspended as s.20(1B) permits. The wording of the order does not quite accord with that and that is why I hand it back to you. You will see that the wording, if you have it in front of you, of s.20(1)(b) is as follows:

"Sentence the person to imprisonment in respect of the offence but direct by order that the person be released upon giving security of the kind referred to in paragraph A, either forthwith or after he or she has served a specified period".

72So, the provision, unlike the state provision, and that enables a term of imprisonment to be suspended.  Now, the order that has been provided to me in draft form is ambiguous as to the suspension.  Do you understand what I am putting ‑ ‑ ‑

73MR MARTIN:  I do, Your Honour.  I just - once, then the surety amount is then put into the recognisance order, I then understood that then permitted the release.

74HIS HONOUR:  Well, so long as the intention is clear, I do not really have a problem with the form.  But I want it make very clear that the intention here is to convict and imprison the accused for three months; however, that, subject to the recognisance release order, he be released forthwith.

75MR MARTIN:  Yes.

76HIS HONOUR:  You can amend the document so that it reflects that from the Crown's point of view and then I will have the accused sign it.

77MR MARTIN:  I can hand that back up to Your Honour.

78HIS HONOUR:  No.  Well, have Mr Mackintosh come forward, he can sign all of those documents in one go as it were.  If you wouldn't mind coming forward, Mr Mackintosh, to where your barrister is.  I think what we might do is, and I apologise for this but, with respect to the recognisance release order, it should be $2,000 not $200 and I am afraid it will have to be re-signed now.

79So, we will just need to redo that document so that it properly reflects the intention of the sentence.  The money does not have to be paid now, as you both know, but it does have to reflect what I intend.  So, that is for a recognisance of two years in the sum of $2,000 and that - the term of imprisonment is with conviction and three months' term of imprisonment for the release of the offender upon the entering in to the recognisance. 
Mr Mackintosh, you will have to re-sign this particular document.  It did not quite reflect what was intended, so we need to redo it.  Are there any other matters counsel need to raise?

80MS O'BRIEN:  No, Your Honour.

81HIS HONOUR:  Yes.  Monday, 9 am, Mr ‑ ‑ ‑

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