Director of Public Prosecutions v Mann (a pseudonym)
[2023] VCC 2073
•20 October 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRIS MANN (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE HARPER |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 October 2023 and 18 October 2023 |
DATE OF SENTENCE: | 20 October 2023 |
CASE MAY BE CITED AS: | DPP v Mann (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2073 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: 3 charges of sexual penetration of a child under 16 – possess drug of dependence – possess prohibited weapon
Legislation Cited: Sentencing Act 1991, Sex Offenders Registration Act 2004.
Cases Cited:Worboyes v R [2021] VSCA 169
Sentence:3 years imprisonment wholly suspended for 3 years and $1000 fine
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr. P. Pickering | A. Hogan, Solicitor for Public Prosecutions |
For the Accused | Mr. T. Antos | MMO Lawyers |
HER HONOUR:
1Chris Mann (a pseudonym), you have pleaded guilty before me to three charges of sexual penetration of a child under 16, one being a rolled-up charge, one charge of possess a drug of dependence and one related summary offence of possess a prohibited weapon.
2The maximum penalty for sexual penetration of a child under 16 is 10 years' imprisonment in each instance. The maximum penalty for possess a drug of dependence where the drug is cannabis, and the offence was not committed for a purpose relating to trafficking is one year or 30 penalty units. For the charge of possess prohibited weapon the maximum penalty is two years' imprisonment or 240 penalty units.
Circumstances of offending
3You met the complainant, Melanie Pearson (a pseudonym), online in 2010 to 2011 through Facebook and met in person for the first time in 2011 when you were 17 years of age, and she was 14. She was under the guardianship of DHHS and living in the Mildura area.
4In May of 2012, Ms Pearson posted on social media that she was 15 and homeless and looking for accommodation. You were now 18 years of age and responded by saying she could stay at your family home in Koorlong.
5On 20 May 2012, DHHS staff took Ms Pearson to your address, advising you that she was allowed to stay overnight. You showed Ms Pearson to a spare room, and you went to watch television together in your room.
6You invited Ms Pearson to sit on your bed. You ran your hand over her thigh and inside her clothing, kissed her neck and inserted your finger into her vagina. This forms the basis of Charge 1.
7You then inserted your penis into her vagina and had sexual intercourse until you ejaculated. This goes to Charge 2, a rolled-up charge of sexual penetration of a child under 16.
8The following day you and Ms Pearson went to one of your friend's homes and used methylamphetamine.
9You both returned to your home. You had mutual oral sex which forms the basis of Charge 3 before having penile vaginal sex a number of times. This goes to the rolled-up charge, Charge 2.
10In June 2012, you and Ms Pearson changed your Facebook statuses to read, 'in a relationship.' This relationship was noted by DHHS.
11The two of you remained in a relationship, albeit a seemingly turbulent and dysfunctional one, until 2018. You now have a six-year-old child together.
12In September 2021, Ms Pearson made a statement to police about your offending.
13Investigators located a number of Facebook messages from you to Ms Pearson referring to sexual intercourse between you and acknowledging that she was underage.
14On 16 August 2022, police executed a search warrant at your home. They located 223.8 grams of cannabis and cannabis seeds which relates to Charge 4, and a red Samurai sword which forms the basis of the related summary charge.
15You were interviewed by police, but denied commencing a sexual relationship with Ms Pearson until after she was 16 years of age and said you did not start dating until July 2012.
Gravity of the offending and moral culpability
16Sexual offending against children is particularly serious. Your victim was vulnerable and was in your home as she had nowhere else to go. You knew she was under-age, and you took advantage of her, offending against her within a very short time of her arriving at your premises. Your moral culpability is high.
Plea of guilty
17You have entered pleas of guilty after a sentence indication hearing before me.
18It is not a plea at the earliest stage, but nevertheless, it has utilitarian value. You have saved the community the time and expense of running a trial and spared the victim the ordeal of giving evidence before a jury. As such, you have facilitated the administration of justice and you are entitled to a benefit for that.
19The utilitarian benefit of your plea is enhanced by the fact that the Worboyes considerations are engaged. This results in a more pronounced amelioration of sentence than at other times.
Remorse
20Despite your initial denials when interviewed by police I find your plea to reflect some level of remorse for your conduct. I take this into account.
Personal circumstances
21I turn now to your personal circumstances.
22You are 30 years of age, having been born in August 1993. As I have said, you were 18 at the time of the offending.
23You report a difficult upbringing and your alcoholic father died when you were about seven years of age. Your mother re-partnered shortly thereafter.
24The first 10 years of your life was spent in housing commission properties where you were exposed to violence, alcohol, and drug use from an early age. You report that you began using cannabis at 12 years of age and used methylamphetamine but have now ceased all use of illicit substances.
25You changed schools regularly until you left in Year 11. You then worked in labour positions such as fruit picking, factory work and machine operating.
26You were in a relationship with the complainant, Ms Pearson, from 2011 to 2018 and there are now family law proceedings on foot in relation to your child.
27You live with your mother and stepfather and have a good relationship with them.
28I did not receive a psychological report in your case.
Sentencing principles and factors
29Mr Mann, your offending was calculated in that you offered your victim accommodation and offended against her shortly after she arrived at your home. There is no victim impact statement from Ms Pearson, however one can well imagine the negative impact of your offending upon her.
30Just punishment and denunciation are relevant considerations as is general deterrence. Sexual offending against vulnerable children is all too common and others must be deterred from committing such offences.
31I accept that specific deterrence is moderated by your demonstrated efforts at rehabilitation in the period since the offending. You have subsequent convictions but none of a sexual nature. In all the circumstances, I find your prospects of rehabilitation to be good.
32The matter did not come to light until 2021. The period between the offending in 2012 and you coming before this court has allowed you to demonstrate that you can go a sustained period without reoffending in this way. The delay has thus been of considerable benefit to you, and I take this positive reflection on you into account.
33I consider community protection to be similarly moderated by your demonstrated efforts at rehabilitation.
34Totality must play a part in the sentencing exercise as the sexual offences were closely linked in time. This will be reflected in the sentence I impose.
Sex Offenders Registration
35You have committed three Class 1 offences, however all occurred within a 24‑hour period, so are considered to be part of the same incident pursuant to s5 of the Sex Offender's Registration Act 2004.
36Having therefore committed one Class 1 offence, you are to be placed on the register for a period of 15 years pursuant to s34(1) of the Act.
Disposition
37Would you stand please, Mr Mann.
38On Charge 1, you are sentenced to two years' imprisonment.
39On Charge 2, you are sentenced to two years' and four months imprisonment.
40On Charge 3, you are sentenced to two years' imprisonment.
41On Charge 4, you are sentenced with conviction to a fine of $500.
42On related summary Charge 5, you are sentenced with conviction to a fine of $500.
43Charge 2 will be the base sentence. I order those four months of the sentence on Charge 1 and four months of the sentence on Charge 3 be served cumulatively on the sentence imposed on Charge 2 and on each other.
44That makes a total effective sentence of three years' imprisonment. I order that the sentence be wholly suspended for a period of three years.
45Pursuant to s6AAA of the Sentencing Act, had you not pleaded guilty, the sentence I would have imposed would have been four years four months with a non-parole period of two years, nine months to serve before being eligible for release.
46Having been convicted and sentenced to a term of imprisonment on each of Charges 1 to 3, you are to be declared a Serious Sexual Offender on Charge 3. This will be noted on the record.
47I grant the disposal order applied for by the prosecution. I understand there to be a difficulty with the forfeiture order.
48MR PICKERING: Not anymore, Your Honour, because the prosecution does not proceed with it.
49HER HONOUR: In that case, I will make no further order in relation to forfeiture.
50MR PICKERING: If Your Honour pleases.
51MR ANTOS: If Your Honour pleases.
52HER HONOUR: Mr Mann, would you now please sign the Sex Offender Registration notification.
53MR ANTOS: I am very sorry, Your Honour.
54HER HONOUR: Yes.
55MR ANTOS: I believe the other day ‑ ‑ ‑
56HER HONOUR: Yes, I said eight years' the other day.
57MR ANTOS: It was eight.
58HER HONOUR: It is 15 under the Act because it is a Class 1.
59MR ANTOS: It is 15 because of the ‑ ‑ ‑
60HER HONOUR: I am happy for you to check that before it is signed?
61MR ANTOS: I will just double-check if I can, Your Honour.
62HER HONOUR: Yes, if you might. It is s34(1) of the Sex Offenders Registration Act.
63MR ANTOS: Thank Your Honour.
64HER HONOUR: You can be seated, Mr Mann.
65MR ANTOS: Thank Your Honour.
66HER HONOUR: Fifteen?
67MR ANTOS: 34(1) wasn't it, Your Honour?
68HER HONOUR: Yes.
69MR ANTOS: Thank Your Honour.
70HER HONOUR: Fifteen?
71MR ANTOS: Thank Your Honour, yes.
72HER HONOUR: Yes? Thank you. Mr Mann, if you would sign the notification, please. You can be seated, Mr Mann. Is there anything else from either party?
73MR ANTOS: Nothing on my end, Your Honour.
74MR PICKERING: No, Your Honour.
75HER HONOUR: Thank you. Thank you for your assistance gentlemen. We will adjourn the court now until 10.30.
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