Director of Public Prosecutions v Maxwell (a pseudonym)
[2021] VCC 223
•9 March 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-19-02485
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADRIAN MAXWELL (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE HIGHAM |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 September 2020; 20 November 2020; 19 February 2021 |
DATE OF SENTENCE: | 9 March 2021 |
CASE MAY BE CITED AS: | DPP v Maxwell (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2021] VCC 223 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Sexual penetration of a child under 16 years – Involving a child in the production of child abuse material – Possession of child abuse material – Plea of guilty
Legislation Cited: Crimes Act 1958; Sentencing Act1991; Sex Offender Registration Act 2004
Cases Cited: R v Verdins & Ors [2007] VSCA 102; R v Renzella [1997] 2 VR 88.
Sentence:Six months' imprisonment and a Community Corrections Order of 30 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Brown | Office of Public Prosecutions |
For the Accused | Ms T. Skvortsova | Martin Middleton Oates Lawyers |
HIS HONOUR:
1Adrian Maxwell,[1] you have pleaded guilty to five charges of sexual penetration of a child under 16 years (Charges 1, 2, 3, 4 and 5) for each of which the maximum penalty is a term of imprisonment of 15 years and the standard sentence is a term of imprisonment of six years; one charge of involving a child in the production of child abuse material (Charge 6); and one charge of possession of child abuse material (Charge 7), for both of which offences the maximum penalty is a term of imprisonment of 10 years.
[1] A pseudonym.
2At the time of your offending, you were aged 18 years. The offending ran from 1 March 2019 to 10 May 2019. Exhibit 1 on the plea was a Summary of Prosecution Opening, dated 15 September 2020, containing the agreed facts of your offending. I incorporate the details therein contained into these reasons.
Circumstances of Offending
3In brief, the circumstance of your offending were as follows.
4In March 2019, you commenced a relationship with Lola Knight.[2] She was aged 15 years and 5 months, and you were aged 18 years and 4 months. On an occasion between March and May 2019, you had full penile/vaginal sex with Lola (Charge 1).
[2] A pseudonym.
5In March 2019, you began communicating with Danielle Brooks[3] via Snapchat. Danielle at that time was 13 years of age. On an evening between 11 March and 12 April 2019, you invited Danielle to meet you at a local park. Danielle had told you that she had had an argument with her mother and that she was upset. Danielle agreed to meet you at the park because she believed you were going to comfort her, as she was upset.
[3] A pseudonym.
6At the park, you began hugging and kissing Danielle. These are uncharged acts, led as context. As with all such uncharged acts, you do not fall to be punished for them, nor do they aggravate the offending to which you have pleaded guilty. You then asked Danielle if you could have sex and she agreed. You then pulled down Danielle’s shorts and penetrated her vagina with your penis (Charge 2).
7The act finished when the park's sprinklers were activated, and you became wet. You moved to another part of the park and continued your conversation. When she told her mother of what had occurred the following day, Danielle was visibly distressed.
8In April 2019, you arranged to meet Alice Chapman[4] along the riverfront.. Alice was aged 15 at the time and was in the care of the Department of Health and Human Services (DHHS). You had known her for a couple of years, and you knew her age. After meeting Alice, you both walked to a location along the river. You then lay down on the ground, pulling Alice down towards you. You then touched Alice’s vagina on the outside of her clothing (uncharged act).
[4] A pseudonym.
9Alice pulled away as you did this; she stood up and walked a short distance. You then lay down on the ground again and asked Alice to lie down next to you, and you then put your hand inside her pants, touching Alice around her vaginal area (further uncharged act).
10You then moved Alice into a position where she was on her hands and knees, and you penetrated her anus with your penis (Charge 3). After turning Alice over, you then penetrated her vagina with your penis (Charge 4). Alice describes feeling pressured by you to take part in both of these sexual acts. Afterwards, Alice walked to a nearby friend's house and disclosed the offending.
11On around 15 April 2019, she disclosed your offending to her DHHS care worker, who then notified police.
12Upon your arrest on 10 May 2019, your mobile phone was seized by police. The phone was analysed and was found to contain a category 4 video showing Lola Knight performing oral sex upon you (Charge 5). The video was date-stamped 22 April 2019. The file was created with Lola’s knowledge and consent. The creation of this file underpins Charge 6. The possession of this file on your mobile phone at the time of your arrest underpins Charge 7.
Procedural History
13After eight days in custody, you were granted bail on 17 May 2019. On
9 July 2019, you were arrested due to breaching your bail conditions. The contraventions consisted of accessing the internet and breaching your curfew condition. Despite being remanded in custody, your bail was surprisingly not revoked on these matters until 17 September 2019, some 70 days later. That period of 70 days does not count as Pre-Sentence Detention.14You then served six months on remand, during which time you were transferred between Melbourne Assessment Prison, Metropolitan Remand Centre, Port Phillip Prison and Ravenhall Correctional Centre, where again, surprisingly, you were placed on an adult wing. This was an extremely challenging, indeed traumatic experience for you, and you are extremely fearful of any return to such an environment.
15You were granted bail on 11 March 2020 but spent a further 14 days in custody in August 2020 following further bail contraventions of a similar kind to those outlined above.
16I note that in your Record of Interview you made full admission to the offending against Lola Knight, implying that your relationship was known to her parents and had their blessing, a matter not accepted by the prosecution on the plea. You denied all offending against Danielle Brooks and Alice Chapman, offering false or implausible explanations for the evidence with which you were confronted in respect of those two victims.
Victim Impact Statement
17In her Victim Impact Statement (Exhibit 2), Lola has written of her anxiety and her fear of gossip and how this has affected her schooling. The stress of this matter and the court case had caused her to be withdrawn and to feel depressed, and that she feels she cannot get on with her life until this matter is concluded.
18In her Victim Impact Statement (Exhibit 3), Danielle also writes of her life:
“It’s so hard knowing that there are so many people in such a small town that know what happened.”
19She, too, has struggled with school, isolates herself and feels that:
“I can't go anywhere on my own because it's not safe as soon as I walk out of my front door it feels like they know and that feeling is one of the scariest things I have felt. I can't even sleep without jumping at every tiny noise.”
20Mr Maxwell, there can be no doubt as to the impact that your offending has had upon those two of your victims.
Personal Circumstances
21I turn now to your personal circumstances. You have no prior or pending criminal matters. You were born in November 2000, and are now 20 years of age, and were 18 at the time of this offending.
22Tendered on the plea were various psychological, neuropsychological, intellectual disability and cognitive assessment reports, DHHS placement referrals and case closure statements dating from 2010 to 2020.
23Those documents, together with the submissions of your counsel, have provided me with a history of your young life to date. You were born in Adelaide. You have a younger brother, , and a younger half-sister,. You have two older sisters from your father's previous relationship.
24When you were six, your parents separated, and you moved with your mother, , and younger brother to regional Victoria. Your father relocated interstate to work in the mining industry. You had limited and intermittent contact with him. Sadly, he died but two weeks ago.
25Your mother has struggled with mental health issues throughout her life. She partnered with a series of abusive men after separating from your birth father. Your half-sister’s father was violent and an alcoholic. You were, at a young age, both a victim of and a witness to physical violence, threats, manipulation, and abuse, perpetrated by your mother's partner, your half-sister’s father.
26DHHS became involved in the family in 2010 and you and your younger brother were removed from the care of your mother, who refused to leave her abusive partner, and were placed in care. After short-term placements, you and your brother were placed with a foster family, who, it seems, provided you with a stable, loving and nurturing environment.
27You attended mainstream schooling and completed Year 10. You struggled at school and were diagnosed with global delay, requiring one-on-one learning support. Assessments throughout your childhood recorded your language skills as being significantly impaired for your age. You also found it hard to understand what was being taught and had difficulties with concentration.
28Multiple cognitive assessments throughout your childhood consistently placed your full scale intellectual quotient in the borderline mild intellectual disability range, that being 65 to 66, despite improvements over time in your adaptive behaviour and qualified and indeed shifting, diagnoses throughout the years. On the Adjourned Plea, I was provided with a Statement of Intellectual Disability, dated 17 December 2020 (Exhibit 17 AM).
29In 2016, your foster parents separated, and your foster father left the home. This was significant for you, as he had been a positive role model. Around this time, perhaps not coincidentally, you began binge drinking alcohol and at the age of 17 began using cannabis to excess. You have cut back on the use of both substances since your arrest.
30At the time of your arrest on these matters, you were completing your first year apprenticeship in building construction. That has been on hold, pending the outcome of these matters.
31When you were aged 17, you spent six months in Queensland with your father. Things did not work out and you returned to your foster home. You moved out of your foster home when you turned 18 years old. Your brother remains placed with your foster family. Your half-sister has also been removed from her mother and placed in care with a different family. I am told you are protective of both your younger siblings.
32You describe a close relationship with your foster mother, who remains a key support of yours. It is clear that independent living represents a considerable challenge for you at this time (see Exhibit 16 AM, Disability Overview Report, dated 9 February 2021).
33You have recently lived with an older male friend. You pay for your own food and assist with the cleaning in place of rent. This friend has accompanied you to various assessments and is a positive support for you. You have been targeted in the community for this offending as, most concernedly, have also been the victims of your offending, who are, let me make quite clear, completely without blame.
34You have also struggled with anxiety and depression since the age of 12 (see Exhibit 14 AM, Pre-Sentence Report, Suitability for Youth Justice Centre Order, dated 14 September 2020) and you have accessed youth mental health and psychological services. Since 2018, you have engaged in counselling and are currently on medication to combat your symptoms of depression.
35In April 2020, you were referred to community mental health services. Exhibit 12 and 13 AM were letters to the Court from Patrice McCarthy of Mallee Family Care. She states that:
“I have been working with [Adrian] on maintaining mental wellness from a recovery focused framework. During this time, [Adrian] has made recognisable effort to consistently engage with our service and work towards recovery orientated goals of symptom management in relation to his anxiety and eventual reintegration into the community. Over this period of proactive engagement with Mallee Family Care, [Adrian] has demonstrated commitment and effort in his ability to understand and manage his wellbeing and implement strategies in his endeavour to stay well. [Adrian] is polite and respectful in his interactions with services.”
36Ms Ferrari, clinical psychologist, first assessed you when you were on remand (Exhibit 5 AM). She noted that you presented with symptoms consistent with a major depressive disorder and generalised anxiety disorder. In her opinion:
“The most salient feature of Mr [Maxwell’s] presentation with regard to his offending, is his mild intellectual disability …. [He] appears to be quite immature and lacks sexual and socio-sexual knowledge which is consistent with his intellectual disability and therefore increases the risk of inappropriate sexual behaviour or gratifying sexual needs using inappropriate or unorthodox methods. It is also common that individuals with an intellectual disability frequently associate with individuals significantly younger in age as it aligns with their maturity level. The offending does not appear to be due to an antisocial or criminal belief system, nor is there evidence of any diagnosable paraphiliac disorder, therefore suggesting that Mr [Maxwell’s] behaviour is rather a reflection of functional age and the deficits associated with his intellectual developmental disorder.”
37She continues:
“Mr [Maxwell] also exhibits … [depression and anxiety] which would be further exacerbated by his intellectual disability, and it appears he is not receiving treatment for these concerns at present …. Mr [Maxwell] continues to exhibit ongoing symptoms in custody, has limited capacity for treatment and support within this environment, and he would be considered vulnerable in light of his intellectual disability which makes him more susceptible to being targeted and easily manipulated; his young age; and being a first-time offender. A custodial sentence would therefore be particularly more onerous for him than it would be on an average offender without mental health issues or intellectual impairment.”
38I accept that conclusion, noting that, of course, Ms Ferrari first assessed you when you were in custody. As to any connection between your mental health and the offending, she wrote:
“Whilst there does not appear to be a direct causal link between his mental health issues and the offending, the presence of depression and anxiety symptoms may have contributed to Mr [Maxwell] being more likely to seek connection, albeit inappropriately, to alleviate or distract himself from his internal distress and low mood.”
39In her addendum report (Exhibit 7 AM), Ms Ferrari qualified the above opinion in these terms:
“[He] does present with a mild intellectual disability which whilst it may not have prevented him from knowing right from wrong …, his condition does bear impact on his cognitive and psychological maturity, his reasoning and ability to consider consequences. It may also have implications for his emotional regulation capacity.”
40Ms Ferrari did not give evidence on the Plea. As I indicated to your counsel, Ms Skvortsova, during the Adjourned Plea, I do not find any or any sufficient connection between your intellectual disability, your anxiety and depression and the offending, so as to engage propositions 1 to 4 of the well-known case of R v Verdins & Ors [2007] VSCA 102.[5] However, such factors still have an important role to play in the sentencing discretion.
[5]R v Verdins & Ors [2007] VCSA 102 [32].
41Ms Ferrari also noted that during your remand, you were not given your usual medication and therefore treatment continuance is considered an issue. There is also limited scope for individual treatment and modified programs in custody, particularly at present due to the COVID-19 pandemic, which means that addressing your psychiatric issues is further delayed and your current engagement with community mental health support is disrupted, which would undermine the progress and improvements you have made.
42Exhibit 14 AM was a Court ordered Pre-Sentence Report addressing your suitability for a Youth Justice Centre Order. After remarking upon the serious nature of the offending and lasting impact upon your victims, the report stated:
“Mr [Maxwell] has been able to display responsibility for his actions and has acknowledged remorse for his victims. In conversation it was evident Mr [Maxwell] also had limited education on sexual responsibility and the law surrounding this at the time of the offending. Mr [Maxwell] has no previous criminal charges and has a willingness to engage in programs to reduce the risk of reoffending. Mr [Maxwell] is also well supported by services and continues to have a positive relationship with his foster mother and [a boarding house worker]…[He] is young, impressionable and socially immature. His mild intellectual disability, mental health, previous history of physical victimisation and bullying would see him easily influenced and vulnerable in adult custody …. Should the Court be considering a custodial outcome he be deemed suitable to serve such sentence subject to a Youth Justice Centre Order. Alternatively, Youth Justice believe Mr [Maxwell] has the capacity and commitment to successfully complete a community based disposition on a Community Corrections Order, should the Court deem this appropriate.”
43It is a telling and persuasive conclusion. I have also requested and received a Justice Plan, dated 9 February 2021 (Exhibit 15 AM), and a Community Corrections Order (CCO) Assessment Report, dated 11 January 2021 (Exhibit 18 AM).
Submissions of Counsel
44I turn now to the submissions of counsel. Mr Brown, on behalf of the Director, submitted that the objective gravity of the offending and all relevant sentencing purposes could be met after further instructions by the imposition of a Youth Justice Centre Order.
45Ms Skvortsova, on your behalf, accepted the serious nature of the offending, but submitted that all relevant sentencing purposes could be addressed by the imposition of a sentence which combined a term of imprisonment, representing the time you had already served, and a suitably crafted CCO.
Gravity of Offending
46Mr Maxwell, sexual offending against children will always be viewed as serious offending. There is an absolute prohibition on sexual activity with a child, which is founded on the presumption of harm. And that prohibition is intended to protect children from harm presumed to be caused by premature sexual activity. That is activity before the age when a child, albeit having all the necessary physical attributes to engage in sexual acts, cannot give meaningful consent.
47It is indeed for this reason that a child's consent is more accurately referred to as apparent or ostensible consent. Sexual activity between adults and persons under the age of 16 can have a lasting impact upon their emotional and psychological well-being. The absolute prohibition can be seen as having two purposes.
48Firstly, to protect children from the harm caused by premature sexual activity and, to that end, to protect them from their own immaturity. The Victim Impact Statements in this matter speak to the impact of your acts upon your victims. On behalf of the community, Parliament has decided that those under 16 years old cannot give meaningful consent to sexual activity even if they are themselves attracted to the idea of participating in sexual activity.
49Secondly, the prohibition is designed to deter those who might otherwise contemplate sexual activity with a child under 16 years old.
50Now, all three of your victims gave consent to the act of sexual penetration, notwithstanding the observations of Alice, that she felt pressured. But consent of itself is not and can never be a mitigating factor, nor can that consent be considered in isolation. Rather, the Court will need to investigate the circumstances in which the consent came to be given.
51Thus, in assessing the gravity of any of your offending, the Court's attention must focus not upon consent, as such, but upon the circumstances in which the consent came to be given.
52Lola gave consent to the acts of penetration and the filming of one such act. She and you were in a relationship, whether or not that was known to her parents. Importantly, the video file of the sexual activity was not shared by you.
53Danielle was 13 years of age, and she was distressed after a row with her mum. She looked to you, hoping for emotional support, but found herself a vehicle for your sexual satisfaction.
54Alice felt pressured to go along with your sexual interest in her.
55However, there was in this case, I find, no great age disparity, no breach of a position of trust and authority, no exploitation by an older male relative or teacher, no sustained and persistent persuasion or use of threats or online seeking out. Therefore, your offending is absent many of those aggravating features which are so often found in cases of this nature.
56You were not, in my view, a sexual predator, but rather a young man with an intellectual disability who, as yet lacks the knowledge of appropriate sexual boundaries and confuses sexual intimacy with emotional intimacy. In short, I find you have not yet been shown how to navigate the world of physical intimacy; you have not had a guide to help you.
57Nonetheless, your offending is serious. Mr Maxwell, as I have already said, all sexual offending against children is serious offending.
58Now, Mr Maxwell, the sentencing purpose is not about retribution or revenge, nor can it give back to the victims that which they feel has been taken from them. In sentencing you, I must have regard to a range of different factors. I must give consideration to deterring others from behaving as you did and consideration to deterring you from any repeat of such behaviour. I should express the community's denunciation of your conduct and I must take into account the effect of your crime upon the community. I should also promote your rehabilitation.
59Finally, in addition to the matters I am required to take into account under s 5(2) of the Sentencing Act1991, I must also take into account that Charge 1 to 5 are standard sentence offences, the standard sentence for which is a term of imprisonment of 6 years.[6]
[6]Crimes Act 1958 s 49B(1); Sentencing Act 1991 ss 5A and 5B.
60In short, Mr Maxwell, my task is to try and balance your personal circumstances with the circumstances of your offending. I must also pass no greater sentence than is necessary in all the circumstances of the case as I find them to be.
61In matters of sexual penetration of a child under the age of 16, general and specific deterrence and community denunciation will generally be highly relevant sentencing purposes, warranting a significant term of imprisonment. Your young age and the importance of your rehabilitation are also important sentencing considerations.
62In my view, your intellectual disability and your youth, both now and at the time of the offending, means that you are not a suitable vehicle for general deterrence. Further, those factors moderate, although they do not eliminate, the need for specific deterrence; that is sending a message to you to not repeat this offending.
63I find I can pass a sentence which does not require you to lose your liberty today, as I indicated on the last occasion, and which is far lower than any standard sentence. I consider that the protection of the community and the interest of justice are best served by promoting your continued rehabilitation in the community.
64In so concluding, I have had particular regard to your disadvantaged upbringing. Mr Maxwell, put quite simply, you have had a childhood that no child should have. I have also had regard to your youth and your absence of prior criminal matters, to your intellectual disability and ongoing mental health concerns, to the period already spent by you on remand and the circumstances of that remand, to which I gave considerable weight.
65I consider the impact upon you of your time on remand. I note that 70 days will not count as Pre-Sentence Detention.[7] I have already expressed my surprise that application was not made to revoke your bail.
[7]R v Renzella [1997] 2 VR 88.
66I have also had regard to your plea of guilty, entered at an early opportunity, and which has saved your victims from the particular trauma of having to give evidence about most intimate matters, and which has saved the community the time and expense of the trial, and which is of particular value to the court in the time of COVID.
67I have also had regard to your remorse, both demonstrated by your plea and by the comments that you made to Ms Ferrari in the course of consultation, to your proven and consistent engagement in mental health programs, to your prospects of rehabilitation, for which I find there are very clear grounds for optimism, to the fact that prison will be more onerous for you than a young person without your intellectual disability or mental health issues and, rather old-fashioned it may be, to the precepts of mercy.
Sentence
68On Charges 1 and 5, sexual penetration of a child under the age of 16, you are convicted and sentenced to a Community Corrections Order of 30 months.
69On Charge 2, sexual penetration of a child under the age of 16, you are convicted and sentenced to a term of imprisonment of four months, and a Community Corrections Order of 30 months.
70On Charge 3 and 4, sexual penetration of a child under the age of 16, you are convicted and sentenced to an aggregate term of imprisonment of five months, and a Community Corrections Order of 30 months.
71On Charge 6, involving a child in the production of child abuse material, you are convicted and sentenced to a term of imprisonment of one month, and a Community Corrections Order of 30 months.
72Charge 7, possession of a child abuse material, you are convicted and sentenced to a term of imprisonment of one month, and a Community Corrections Order of 30 months.
73I order that one month of the sentence imposed on Charge 2 run cumulative to the aggregate sentence on Charges 3 and 4. I make no other orders for cumulation. This makes a total effective sentence of six months' imprisonment and a Community Corrections Order of 30 months.
74Pursuant to s 6AAA of the Sentencing Act 1991, had you not pleaded guilty you would have been sentenced to a Youth Justice Centre Order of 30 months' duration.
75Pursuant to s 18(4) of the Sentencing Act 1991, I direct that you have served 185 days of the sentence that I have passed upon you, and I direct that this be entered into the Records of the Court.
76Pursuant to the Sex Offender Registration Act 2004, you are now a registerable offender, subject to the provisions of the Act, and the period of registration is for the remainder of your life.
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