Director of Public Prosecutions v Maher
[2023] VCC 379
•9 March 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02142
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHAHN LEFOE |
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JUDGE: | DALZIEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 February 2023 | |
DATE OF SENTENCE: | 9 March 2023 | |
CASE MAY BE CITED AS: | DPP v LEFOE | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 379 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sexual assault of a child under 16 – Sexual penetration of a child under 16
Legislation Cited: Sex Offenders Registration Act 2004 (Vic)
Cases Cited:Underwood v The Queen [2018] VSCA 87; Clarkson v The Queen [2011] VSCA 157; Sahhitanandan v The Queen [2019] VSCA 115
Sentence: Convicted and sentenced to a total effective sentence of 8 years imprisonment with a non-parole period of 5 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J O’Toole | Office of Public Prosecutions |
| For the Accused | Ms. S Joosten Mr C . Tom | Victoria Legal Aid |
HER HONOUR:
1Shahn Lefoe, on 19 July 2022, a jury found you guilty of 4 charges of sexual penetration of a child under the age of 16. You were acquitted on Charge 1, which was a charge of sexual assault of a child under 16.
2The victim in this matter was 12 years old. She was distantly related to you, by marriage. She lives in New Zealand and at the time of these offences she was visiting Australia, with her grandmother. You had never met her before.
3There was a family gathering at the house where you lived with your father and step-mother. At around 3 pm the victim and her grandmother arrived at your house. You were not there at that point. Over the course of the afternoon and evening the adults socialised in an outdoor area, and the children remained in the house.
4At some point between 9 and 10 pm you went into the lounge room of the house, where the victim was sitting with her 9 year old cousin. You spoke to both of them for a short time. The victim said that in the course of that conversation she told you she was 12, but her cousin did not support that evidence – she did not recall the victim saying that, and herself thought the victim was 13 or 14, so would not have supported the victim on this point.
5The victim said that at around 9.50 pm she went outside the front door of the house, to smoke a cigarette and look at her grandmother’s phone. Whilst she was out there, you joined her, and the two of you seem to have chatted. The jury acquitted you of a charge of touching her on the vagina, over her clothes at this time.
6The victim says that you held her arm and led her to a nearby nature reserve. She was able to describe the route, but it was dark and she had never been there before. I do not accept your position, that the victim was sexually aggressive towards you, and that it was she who led you there.
7The complainant had, at some point, activated the phone so that it recorded the sounds of your interaction. Later, she deleted some of this recording, so that the recording which was tendered in evidence clearly starts part way through the interaction between you.
8The jury found you guilty of:
§Charge 2 – sexual penetration by you putting your penis into the victim’s vagina whilst she was on her back;
§Charge 3 – sexual penetration by you putting your penis into the victim’s vagina whilst she was bent over forward;
§Charge 4 – sexual penetration by you putting your penis in the victim’s mouth; and
§Charge 5 – sexual penetration by you putting your penis in the victim’s mouth for a second time.
9In the course of this activity you directed her as to what to do, and to make noise to indicate that she was enjoying it. You at one point directed her to “keep going” despite the victim feeling sick. At the conclusion of the sexual activity you got dressed and went back to the house. You left the victim in the park. You went back, jumped the back fence and went into the house.
10The victim made her way back. She had to ring the doorbell to get in. The woman who let her in observed that she was crying and distressed. She joined her young cousins in the living room, and told them she had been raped.
11She tried to call her aunt, who was back in New Zealand, and messaged her saying “I got raped” and “help me”. She spoke to her aunt, but was crying and unable to speak clearly.
12Another woman who was at the house heard the victim crying, in the toilet. She knocked on the door, and asked if she was ok. The victim put her off, saying she was ok, and gave an explanation for feeling poorly.
13A few minutes later the same woman heard the victim still in distress and asked her again if she was alright, again, and then again. At the third enquiry the victim said she had been raped earlier, by someone who was at the house.
14The victim pointed out you as the offender. She made a statement to police the next day.
15You were interviewed on 6 August 2019. You told the police the victim asked you for weed, meaning Cannabis, and that you offered to give her a smoke. You said she tried to grab your genitals, pulled her pants down, and that you did not know what to do, you walked away, but then she grabbed you again so you had sex with her. You said she told you she was 21 and allowed to smoke.
Explanation for Verdicts
16The only act of sexual penetration you disputed was Charge 3. You accepted that you had done the acts which were the subject of charges 2, 4, and 5.
17In her initial statement to the police, by way of a recording of her evidence, the VARE, the victim described Charges 2 and 3 happening in that order. Under cross-examination she said that was incorrect, and that it was Charge 3 which happened first. Your counsel agreed that the jury could be directed that, provided they were satisfied that the particularised penetrations occurred, they could find you guilty whether the events happened in the order initially stated or the other way round.
18The prosecutor had pointed to evidence which supported the victim, including a reference to a birthmark, in the recording. The victim has a birthmark on her upper thigh, at the back. Your barrister argued that it was the victim who mentioned that, not you, and that the recording in that respect did not clearly support her evidence. By their verdict on Charge 3 the jury accepted that the penetration occurred.
19The principal issue in the case was whether you believed on reasonable grounds that the complainant was 16 years or older. You told the police that you believed she was 21. The jury rejected this. It was a position that was untenable in the face of the evidence of the victim’s appearance at the time, and how she appeared in the VARE and indeed when she gave her evidence at the special hearing.
20There was discussion on the plea hearing about what I could or should conclude by reason of the acquittal on Charge 1. There were several reasons suggested as to why the jury found you not guilty on that charge, but guilty on the others. The most obvious and reasonable explanation is the recording. The sounds on it supported that there were a number of separate episodes of sexual activity in the course of the 21 minute recording. This supported the victim’s evidence about what happened at the park.
21On the other hand, in respect to Charge 1, the recording did not provide any supporting evidence. The absence of the start of the recording, differences between the victim’s description of her response and behaviour and the recording, and the very brazenness of the allegation in respect to Charge 1 provide a reasonable explanation for the jury’s verdict.
22I do not consider that a possible reasonable explanation for the different verdicts is that the jury may have accepted your defence about belief in age in respect to Charge 1. If that were the case then they would also have had to acquit you on Charges 2 and/or 3, which occurred before the conversation about age captured on the recording.
23The recording played of these events was said by the prosecution to include a statement by the victim that she was only 15. Your counsel had argued that what could be heard was her saying she was 21. Clearly the jury accepted that you did not believe on reasonable grounds that she was 16 or more. I was unable to form a definite opinion about what the victim said at that point of the recording.
Personal Circumstances
24You are now 31 years old. You were born and raised in a small town on the north island of New Zealand. You and your family are Māori.
25You are the eldest of 3 children born to your mother and father, and you also have 3 half-siblings on your mother’s side, and 4 on your father’s. You were raised on a farm. You have described your childhood as good, and you enjoyed activities such as riding motor-cross and fishing. Your family was financially stable and your practical needs were met.
26You were close to your grandfather and could turn to him and your parents when needed. You say you were also close to an aunt who was able to provide a source of discipline and boundaries for you. Your parents separated when you were in primary school, both finding new partners. You lived with your mother. Your step father was violent towards your mother. On one occasion you were assaulted by him when you tried to defence your mother.
27When you were 10 you were touched you inappropriately, in your bed, by your aunt. You say she was intoxicated, immediately apologetic and said that she had mistaken you for your uncle. You say you felt confused and scared. You disclosed the incident to your mother, but are unsure whether anything happened to your aunt, and you felt as if no-one cared. You had no contact with your aunt after this.
28You went to the local primary school, but your attendance was spotty, and you struggled academically. You report a traumatic event at school where the principal locked you in a room. You were expelled in Year 7, and that was the end of your formal schooling. Since then you have learnt to read and write, with no problems in literacy now.
29You worked on the farm from age 10. You learned to shear at age 11, and started in the forest industry planting trees at age 13. You worked in what Ms Cameron called the pruning industry from age 21 to 26, before you relocated to Australia.
30You were 15 when you formed a relationship with Patricia. You were together for 3 to 4 years and have two children together, who are now aged 11 and 13. They live in New Zealand with their mother.
31You later formed a relationship with Ruby, with whom you have two children aged 8 and 10. Ruby was your partner at the time of this offending, she was home in the house in Point Cook whilst you were offending against the complainant in the park. You have described her as the best mother, and said that there were no frequent arguments, no violence, you did not cheat on her and normal intimacy.
32Your grandfather was an important figure in your life and when he died in 2010 this was a real blow. You report feeling depressed for several years afterwards and that family conflicts exacerbated the grief.
33Your criminal record, which is from New Zealand, has some drink driving matters which are irrelevant. Between 2013 to 2017 you had court appearances for assault, theft, wilful damage and contravening protection orders, for offending in 2013, 2014, 2015, and 2016. The most serious of these appear to be the family violence related matters in 2016. It is unclear who the victim or victims of these offences were. It would appear you were in the relationship with Ruby at the time, but you told Ms Cameron there were no family violence issues in that relationship.[1]
[1]Cameron [33]
34You and Ruby moved, with your children, to Australia in 2018. You had a job lined up here with one of your brothers, and you also planned to help with the care of another brother, who has an acquired brain injury. Your father lives in Point Cook, in the house where you were on the evening of the offences. Your mother still lives in New Zealand, as does the rest of your family, aside from your father and two brothers.
35That relationship has since ended, and Ruby and your children live back in New Zealand now, having moved home there in 2019. Whilst you were able to have regular contact by phone with them when you were in immigration detention, the expensive calls means that once you were placed on remand in July 2022 you have had no contact with your children.
36You attribute the breakdown of the relationship with Ruby to her feeling isolated once you were in immigration detention.
37Your mother, father, brothers Daniel and Hayden, Muriel Panui, and Cecilia Lefoe all provided references for you. Your family write that you are family oriented, hardworking, generally well behaved and respectful person. Your father also writes of the help you provided for your younger brother after his car accident.
Mental Health
38You had no pre-existing mental health concerns that caused you to seek treatment. Whilst in custody you have had mental health reviews, but there is no suggestion that you are considering self-harm. You have found immigration detention, then remand, isolating, particularly in the context of the pandemic and the strict conditions and lockdowns in place as a consequence. Your mood has been low since you have been in custody.
39Whilst you were in immigration detention two friends you made there passed. You found this very upsetting.
40Ms Cameron diagnosed you as having symptoms related to trauma, but not reaching the level of clinically significant post-traumatic stress disorder.
41You were assessed by a neuropsychologist as having a full-scale IQ of 79, which is in the borderline range.
42You told Ms Cameron that you do not have a problem with alcohol, but she considered that the level of consumption you described was indicative of a hazardous drinking history, and possible alcohol dependence.[2] You have also smoked Cannabis for many years.
[2]Cameron [40]-[41] cf [68]-[70]
43Ms Cameron said you present as impressionable and emotionally naïve.[3]
[3]Cameron [54]
Explanation for Offence
44You said you were not having intimacy problems in your relationship, and that you were enjoying your work. You had been in Australia for around 6 months. You were working 5 to 6 days a week, eating regularly, sleeping well and had no mental health issues.
45You persist in saying that you believed the victim to be 21 at the time, and state that you were “set up” by the victim, and that she took advantage of you.[4] Why she would do so is not stated. You maintained that it was she who initiated sexual activity, she who led you to the park despite never having been to your home or the area before, and that you believed you were just going to share a smoke. You say she tried to take your pants off, and that whilst you did not want to go along with the sexual activity, you felt helpless and you just had to.
[4]Cameron [47]
46You can be heard on the recording asking the victim, ‘Didn’t you see me eyeballing you?’ This contradicts the position you took in the police interview that she approached you, was sexually aggressive and that you simply went along with her importuning you.
47The following part of Ms Cameron’s report sets out your inability to accept responsibility for your actions:[5]
He denied being sexually attracted to the victim or other pubescent females. When asked how he became sexually aroused if he did not find the victim sexually attractive, he expressed a sense of uncontrollability by stating the victim had aroused him by touching him. When asked what he told himself to justify his offending, he said “it was just her, she was eager…[he] couldn’t say no”. Mr Lefoe alleged that the victim was “in control” of the sexual encounter and that someone told him she sounded like she “liked it” according to the recording.
When asked who was responsible for the offending, he said he understood that his actions led him to his current circumstances, however maintained “it’s her fault”. Mr Lefoe reiterated that he felt “set up” and maintained that the victim was a “home wrecker”. He was unable to comprehend that irrespective of his perception that the victim allegedly initiated the sexual activity with him, he nonetheless committed a crime due to her age (i.e., not having the legal capacity to consent).
… He said he subsequently felt “dumb” and like “an idiot” for believing the victim was age 21. He stated that he would not have given the victim a cigarette if she was underage or engaged in sexual activity with her. When asked what he could have done differently, Mr Lefoe reflected that he should have walked away from the scenario.
[5]Cameron [48]-[50]
48You have a concerning lack of insight into your behaviour. Your explanation effectively reverses the roles of instigator and victim, which were described by the victim in her evidence.
Culpability
49I do not accept your explanation and description of how the offences occurred. It may be that since the events, and since the version you gave the police some days later, you have convinced yourself of it, but I do not accept that at the time of these offences you were not the instigator.
50I note the following factors:
(a) The complainant was 12;
(b) She was in a place she had not been before, and there is no evidence upon which I could conclude that she knew where the park was;
(c) You said then and maintain now that you thought she was 21, this is clearly untenable based upon her appearance at the time, which was established by the TikTok video and the VARE;
(d) You told her in the recording that you had been “eyeballing” her earlier in the evening, which is inconsistent with your version of events;
(e) The suggestion that she was sexually aggressive towards you, a man she had never met before, is farcical; and
(f) Her distress afterwards is wholly consistent with unexpected and unwelcome sexual activity, as she described.
51I do not sentence you on the basis that you believed, or ought reasonably believed, that the complainant was not consenting. You are sufficiently obtuse that you may not have appreciated that she was not wanting to engage in sexual activity. On the other hand, I do not find on the balance of probabilities that you believed she was consenting.
Gravity of the offending
52I take into account the following matters in assessing the gravity of the offending:
(a) The victim was 12, you were 27;
(b) Although you may not have appreciated that the victim was only 12, by their verdict the jury found that you were aware she was under 16, or that you did not believe on reasonable grounds that she was 16 or more;
(c) The offending was opportunistic. You came across this young female in your own home, you removed her from that environment, to a dark nature reserve, and sexually penetrated her four times;
(d) You persisted with asking her to suck your penis even after she said she was tired;
(e) You directed her to lick your ejaculate;[6]
(f) You did not wear a condom, and you ejaculated in her vagina; and
(g) In addition to the penetrations you licked the victim’s face, something she found very upsetting.
[6]T48.23
53There are a number of matters in evidence indicating that the sexual activity was not welcome to the complainant. She described it as rape. She was visibly distressed afterwards. She exhibited distress during her evidence. I consider that her behaviour, as captured by the recording of the incident, is as or more consistent with her being compliant perhaps because of confusion or shock at the situation she found herself in than consent. Many cases before the courts demonstrate that children frequently comply with unwelcome conduct for reasons which can be hard for them to understand and articulate. Consent is not mitigating of itself in offences of this nature.
54If I were to find beyond reasonable doubt that the complainant was not consenting this would be a significant aggravating factor. I do not make such a finding, but I do take into account the victim's age, distress and the surrounding circumstances. This case is very different to a relationship involving a 15 year old child who takes part in sexual activity in a quasi‑consensual way.
55While no victim impact statement has been filed, I do not consider that this is because the victim was unaffected. It was clear from her behaviour at the time, and from the evidence, that she was. Furthermore, I have regard to the statement by the Court of Appeal in the matter of Clarkson:
'Absolute prohibitions on underage sexual activity are founded on a presumption of harm. Premature sexual activity is presumed to cause long-term and serious harm, both physical and psychological, to the child. Premature sexual activity for this purpose means activity before the age when a child can give meaningful consent.'[7]
[7] Clarkson v The Queen [2011] VSCA 157, 33
Matters Raised in Mitigation
Delay
56These offences occurred on 3 August 2019. You were interviewed on 6 August and charged. You were remanded in custody, and bailed on 24 October 2019.[8] You were then held in immigration detention until the verdicts on 19 July 2022.
[8]79 days
57The COVID-19 pandemic then severely impacted the listing of committals in the Magistrates’ Court trials in this Court. Over 2020 such pre-trial steps as could be done were done, including preliminary cross examination of some witnesses and the pre-recording of another witness’ evidence.
58Your matter was listed for trial in October 2021. Due to difficulties in arranging the presence of an intermediary with the victim for the special hearing, the trial was delayed again, until it was finally commenced and concluded in July 2022.
59Thus, a period of nearly 3 years passed between interview and the trial. You have been held on remand and then in immigration detention for all that time.
60I accept that the matter hanging over your head will have caused you considerable concern and worry over that time, and I take that into account in mitigation.
Conditions of Immigration Detention
61Whilst not immigration detention was not as restrictive or onerous as remand in a prison, your movements and ability to engage in work or other activities were limited. This was made worse by the pandemic, which led to :
(a) restricted visits, no visitors at all in your case and supports you could otherwise have received, such as food or gifts from family;
(b) the cost of contacting your family by phone led to you only being able to speak to your family for a few minutes each day;
(c) lockdowns restricted your capacity to move around from your living area. In you case these conditions existed for around 48 days in total;
(d) the food provided being sometimes reduced to pre-packaged meals; and
(e) you had reduced or non-existent education and recreation programs.
62The 992 days, which is about 2 years 8 months, you spent in immigration detention cannot be declared as pre-sentence detention, but I do take them into account in a “broad and practical way”, as a very significant factor in mitigation.[9]
[9]Underwood v The Queen [2018] VSCA 87; Sahhitanandan v The Queen [2019] VSCA 115, [34]
Deportation
63I accept that there is a real likelihood that you will be deported once your sentence is finished. Whilst your children and much of your family lives in New Zealand, you moved here for the opportunities of work and to assist your father with your brother.
64I accept that you will be concerned about the risk of deportation, whilst in custody, and I mitigate your sentence to a small degree for this reason. I consider the mitigation afforded by this factor is not great, as your children and most of your family live in New Zealand, and you lived there for most of your life.
Custody
65I accept also that your time in custody here in Australia may be affected by the pandemic in future, and that your ability to have contact with your children will be significantly reduced. Furthermore, it appears that whilst you father and two brothers live here, you have few other friends here so that your contacts with friends and family will be limited whilst in custody in this State.
Totality
66I am required to impose appropriate sentences on each charge and make orders for cumulation which ensure that the total sentence is in keeping with the totality of the offending, having regard to the matters raised on the plea. I will take into account in formulating these orders, that each of the charges occurred close in time to the others. I must also have regard to the fact that in this incident there were 4 acts of penetration.
67The principal of totality is affected by the serious offender provisions, so that there is a presumption of cumulation in respect to the sentences on Charges 4 and 5.
Other Sentencing Considerations
68General deterrence is a significant sentencing consideration. Sexual offending against children is deplorable and is the source of grief and harm to the victim that can have lifelong effects. Just punishment and denunciation of your offending also carry significant weight in the discretion.
69As to specific deterrence, I give this more than a little weight in sentencing you. Ms Cameron assessed you as presenting a moderate risk of sexual re-offending.[10] I accept her opinion. You have a history of issues in intimate relationships, your attitude towards sexual activity is somewhat concerning, as is your lack of insight into this offending. You do have some protective factors, including your family, otherwise pro-social lifestyle.
[10]Cameron [77]-[103]
Current Sentencing Practice
70I was referred to one case by the prosecutor, and four cases by defence counsel to assist me with current sentencing practice. I am permitted only to have regard to sentences where the standard sentence was taken into account. These cases have provided some assistance on current sentencing practice. As defence counsel acknowledged each case involved a plea of guilty, and there were relevant differences in the facts. Principally each involved a victim who was older than 12 and the surrounding circumstances were very different. In each of those cases the victim was consenting to the extent that a child can. Furthermore, as noted in each case the accused had pleaded guilty. Some of the sentences were also on rolled up charges.
Specific Sentencing Act Provisions
71Each of the offences for which I must sentence you is a standard sentence offence. The applicable standard sentence is 6 years’ imprisonment. The standard sentence, like the maximum penalty of 15 years’ imprisonment, is a guidepost which I must have regard to. I am still required to apply the instinctive synthesis approach to sentence, and take into account all the matters I would ordinarily consider.
72I will be sentencing you to individual sentences which are each below the standard sentence. Each sentence takes into account the gravity of the offending, which in my view was at the upper end of the middle range of offending for this type and also the mitigating factors. In particular the long period you spent in immigration detention which cannot be declared pre- sentence detention.
73Section 11A of the Sentencing Act requires that I fix a non-parole period that is at least 60 percent of the head sentence, if the total effective sentence is less than 20 years.
74If sentenced to a term of imprisonment on Charges 2 and 3 you are to be sentenced as a serious sexual offender on Charges 4 and 5 and I am required to treat protection of the community as the principal sentencing purpose on Charges 4 and 5. I have not been asked to imposed a disproportionate sentence on those charges.
75Mr Lefoe, the sentences are as follows:
· Charge 2 five years
· Charge 3 five years
· Charge 4 four and a half years
· Charge 5 five years.
76The sentence on charge 5 is the base.
77I direct that one year of the sentences imposed on Charges 2, 3, and 4 be served cumulatively upon each other and on then sentence on Charge 5. This results in a total effective sentence of eight years imprisonment. I set a non-parole period of five years and six months.
78I declare pursuant to s18 that you have already served 312 days in custody and I direct that this declaration be entered into the records of the court.
79By operation of the Sex Offenders Registration Act you will be a registerable offender for 15 years and I direct also that it be entered into the records of the court that you were sentenced as a serious sexual offender on Charges 4 and 5.
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