Director of Public Prosecutions v Marshall
[2014] VCC 1008
•27 June 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00092
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DYLAN MARSHALL |
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JUDGE: | HIS HONOUR JUDGE GRANT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 April 2014 | |
DATE OF SENTENCE: | 27 June 2014 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2014] VCC 1008 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. O’Doherty | OPP |
| For the Accused | Mr S. Payne | Victoria Legal Aid |
HIS HONOUR:
1 Dylan Marshall, you have pleaded guilty to one charge of Procuring sexual penetration of a child under 16 and one charge of Sexual penetration of a child under 16. The maximum penalty for each of these offences is ten years' imprisonment.
2 I have heard a summary of the offending. I do not intend to repeat the summary. It will be attached to these remarks as Exhibit A.
3 Briefly, when the first offence commenced you were 26 years old and the complainant was 14. When you committed the act of sexual penetration you were 27 years old and the complainant was 15.
4 You met the complainant through Facebook in April 2012. Between April and December of 2012 you engaged with the complainant in regular Facebook discussions. In some of the discussions you asked the complainant if she would have sex with you. You raised the prospect of payment for sex. The complainant advised you that she was sexually experienced with younger men. There were discussions about an appropriate fee. The complainant eventually agreed to have sex with you for $500.
5 Sexual intercourse took place at your home on 24 December 2012. You paid by cheque. The cheque was not honoured and between the end of December and late February 2013 there were ongoing exchanges on Facebook about honouring your obligation to pay the money.
6 The complainant threatened to notify the police if she was not paid. The complainant’s sisters reported the matter to police on 3 February 2013. On 7 February 2013, the complainant informed the police that she did not wish to participate in an investigation at that time. On 22 February 2013, the complainant advised you that her sisters had contacted the police and at that time you paid her $500.
7 In May 2013, the complainant decided to assist police. She provided a VARE statement on 21 May 2013. You were interviewed by the police on 27 June 2013 and made partial admissions. You told the police you thought the complainant was over 16. The Facebook record shows that you knew the complainant was under 16 and that having sex with her was against the law.
8 In her victim impact statement the complainant describes how your criminal behaviour drove a wedge between her and her mother and sisters. She said that it destroyed her happiness for a good four months. The complainant concedes that “we have all nearly forgotten about the incident.” I am satisfied, having read the Facebook exchanges in this case, that the complainant is a resilient young woman.
9 You entered a plea of guilty before me on 11 April 2014. Your plea of guilty was entered at an early time. The plea has saved the complainant from the trauma of giving evidence and has also avoided the costs involved in a criminal trial. You will be given appropriate credit for your plea of guilty.
10 At the plea hearing, I heard evidence from your mother and received submissions on sentence. Your counsel recognised the serious nature of the offending but submitted that there were strong mitigating factors in this case that spoke against an immediate term of imprisonment.
11 The prosecution submitted that there were some unique features in this case that would allow the court to impose a suspended sentence or community corrections order. The prosecution also indicated that the complainant, having heard the plea, did not “insist” upon an immediate term of imprisonment.
12 I adjourned the matter to 22 May 2014 to receive further submissions on sentence.
13 One very important matter in mitigation concerns your mental disorder. Dr Aaron Cunningham, Forensic Psychologist, has made a diagnosis of Autism Spectrum Disorder. In his report, he states that:
“Autism Spectrum Disorder is a neurodevelopmental disorder that manifests itself early in an individual’s development. Autism Spectrum Disorder is characterised by developmental deficits that produce impairments of personal, social, academic and/or occupational functioning. Autism Spectrum Disorder is characterised by persistent deficits in social communication and social interaction including deficits in social reciprocity, non‑verbal communication, behaviours used for social interaction and skills in developing, maintaining and understanding relationships. Individuals with Autism Spectrum disorder have socio‑communicative deficits that can impair their ability to determine social cues, the social appropriateness of certain behaviours, develop empathy and reason morally.”
14 In her evidence your mother said that you have had “behavioural problems” since childhood. Over the years, she has unsuccessfully sought assistance from doctors and counsellors in an effort to try and understand the reasons for your behaviour. As a child you exhibited a concerning level of clumsiness and a lack of social skills. At school you found it difficult to relate to other children. You were a troubled student, lacking in concentration and disruptive in class. You were expelled from school in Year 10.
15 After leaving school you worked in various different occupations, none of them lasted more than 18 months. You also commenced drinking alcohol. Much of your criminal offending in the past relates to the abuse of that substance. In 2010 you were run over by a motor vehicle and you have had very little work since that time.
16 Your mother expressed her deep concern at your lack of maturity, noting that you act as if you are a 16 year old. She says that you are unable to see beyond the day you live in. Your mother believes that the diagnosis made by Dr Cunningham will be enormously helpful in managing your future. You are fortunate to have such strong support from your mother.
17 In the concluding part of his report Dr Cunningham says this:
“In the context of his Autism Spectrum Disorder, Mr Marshall presents with deficits in his ability to determine the social and moral appropriateness of certain behaviours as well as to empathise with the emotional state of others. In my opinion, Mr Marshall’s perceptions of loneliness and isolation motivated him to connect with the victim. Whilst Mr Marshall presented with an understanding that his behaviour was illegal, in my opinion, Mr Marshall’s Autism Spectrum Disorder contributed to his difficulty with understanding the extent of the moral inappropriateness of his offence behaviour.” Dr Cunningham also opines that a term of immediate imprisonment would be more onerous for you than it would be for an individual without that disorder.
18 I am satisfied that the Verdins principles have general application in this case and that my sentence should be moderated to reflect those principles.
19 I accept that at the time of the offences you were isolated, lonely and socially inept. You were immature. That immaturity reveals itself in the discussions on Facebook. The complainant presented to you as sexually experienced and indicated a willingness to engage in sex for money. There was no abuse of a position of trust. Fortunately, the complainant has suffered a relatively modest level of harm. You have pleaded guilty at the earliest opportunity.
20 All of these factors in combination have persuaded me that an immediate term of imprisonment would not be appropriate. In determining the order that should be made, I have been influenced by the opinion expressed by Dr Cunningham that you would benefit from ongoing support to assist in the management of your Autism and your ongoing alcohol abuse.
21 Mr Marshall you will be convicted on both charges and placed on a Community Corrections Order for two years. The order will have the following special conditions attached: (1), that you be under supervision for the period of the order; (2), that you perform 200 hours of community work; (3), that you undergo treatment and rehabilitation (including testing) for alcohol abuse; (4), that you undergo mental health assessment and treatment; (5), that you attend the sex offenders program for assessment and, if assessed as suitable, participate in that program as directed.
22 I make the disposal order sought by the prosecution.
23 I also order that pursuant to the relevant provisions of the Crimes Act 1958, you undergo a forensic procedure for the taking of a scraping from your mouth. This means that you must report to the officer in charge of the Warrnambool Police Station during the four‑week period that commences 28 days after today's date to undergo the procedure. If you fail to cooperate in the taking of the sample the police may use reasonable force to obtain it. I make this order because the offending is serious and the making of the order is in the public interest.
24 Mr Marshall, I am required to make an order under the relevant provisions of the Sex Offender’s Registration Act 2004. You will be placed on the Sex Offender’s Register and remain on the register for the rest of your life. In a moment my Associate will hand you documents and ask you to sign an acknowledgment, indicating that you have received those documents from this court. You will receive further material from the relevant agency in due course. You can be seated there.
25 Ms Harold or Mr Payne, are there any other matters that I need to attend to?
26 MR PAYNE: No, Your Honour.
27 MS HAROLD: No, Your Honour.
28 HIS HONOUR: Mr Marshall can step out of the dock now, thank you.
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