Director of Public Prosecutions v May (a pseudonym)
[2022] VCC 557
•28 April 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUKE MAY (a PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE CARMODY |
WHERE HELD: | Melbourne |
| DATE OF TRIAL: DATE OF PLEA HEARING: | 26 November 2021 26 April 2022 |
DATE OF SENTENCE: | 28 April 2022 |
CASE MAY BE CITED AS: | DPP v May (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2022] VCC 557 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: False imprisonment – sexual penetration of a child under 16 years – principles of totality – delay
Legislation Cited: Sentencing Act 1991; s6D, s6E, s6F
Cases Cited: DPP (Cth) v Haidara [2013] VSCA 149
Sentence: Convicted and sentenced to 10 years and nine months’ imprisonment with a non-parole period of six years and three months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Pirrie | The Director of the Office of Public Prosecutions |
For the Accused | Mr N. Goodfellow | McFarlane Criminal Lawyers |
HIS HONOUR:
1Luke May[1], on 3 December 2021 at the Morwell County Court you were found guilty by a jury of 12 of your peers on the following charges on Indictment No.K12611606.3:
·Charge 1, false imprisonment, this charge has a maximum sentence of 10 years' imprisonment;
·Charge 2, sexual penetration of a child under 16 years. The jury also found the aggravating circumstances that the child in question was under 12 years. That charge has a maximum sentence of 25 years' imprisonment;
·Charge 3, sexual penetration of a child under 16 years. The jury also found the aggravating circumstance that that child was under the age of 12 years. That charge has a maximum sentence of 25 years' imprisonment;
·Charge 4, sexual penetration of a child under 16 years. The jury also found the aggravating circumstances that the child was under 12 years at the time of your offending. This charge has a maximum penalty of 25 years' imprisonment;
·Charge 5, sexual penetration of a child under 16 years. This charge has a maximum penalty of 10 years;
·Charge 6, sexual penetration of a child under 16 years. This charge has a maximum penalty of 10 years; and
·Charge 7, sexual penetration of a child under 16 years. That charge has a maximum penalty of 10 years' imprisonment.
[1] a pseudonym name.
2The trial took place over six court sitting days. The offending in respect of Charges 1, 2, 3 and 4 were committed against the same person in the period between 1 February 2011 and 10 August 2011. The offending in respect of Charges 5, 6 and 7 was committed against the same person in the period of 1 January 2014 and 30 November 2014. You were remanded in custody on these charges on 3 December 2021.
3There are no pre-sentence custody days in respect of these charges. You have been in custody for other offending from 7 October 2019 to the present.
Circumstances of your offending
4The circumstances of your offending outlined in these reasons for sentence are findings made on the appropriate standard, which is beyond reasonable doubt, and are consistent with the jury's verdicts.
Background
5I will refer to your victim in Charges 1, 2, 3 and 4 as SWT. SWT was born on 2 July 2002. He was under 12 years of age for the whole period of your offending against him. SWT together with his two younger siblings, were placed in foster care with your biological parents. You lived in a caravan at the front of your parents' home. Your parents, your biological brothers, and the foster children lived in the house.
6Between 1 February 2011 and 10 August 2021, SWT and his two siblings were placed by DHS with your parents as foster children. They were very young children. At the time you were 21 years of age, soon to be 22. SWT was eight or nine years of age.
Charges 1 and 2
7SWT and his two younger siblings had been placed with your parents for a couple of months when the first offending by you occurred against him. At that stage he was eight years of age.
8You invited SWT to play Xbox in your caravan. Once inside the caravan, you closed the door. SWT thought you had locked it. You spoke to him in a sexual manner. SWT wanted to leave and stood up from the bed that he had been sitting on to play the Xbox. You grabbed him and restrained SWT by tying his ankles and hands together with rope.
9Whilst SWT was restrained you pulled his pants and underwear down and penetrated his anus with your penis. You did not use any lubricant. Your actions hurt SWT. When you were finished you cut the rope. SWT pulled up his pants. You told SWT to 'keep it quiet'. SWT went back into the home of your parents and told no person about these events at that time.
Charge 3
10This charge is the second time that you sexually penetrated SWT. SWT and three other children were watching a movie in what was the basement of your parents' home. The basement was a bedroom that was shared by one of your biological brothers and the second victim in this trial, who I will refer to as RA. You were also watching the movie. SWT was laying on the bed, watching the movie, when you pulled him back towards you and told him to be quiet. You wrapped a blanket around SWT and yourself. You pulled SWT's pants and underwear down and penetrated his anus with your penis. SWT did not say or do anything to bring your act to the attention of the other persons present.
11At that stage he was still eight years old. SWT remained in the room on the bed until all the others, including you, had left the room. He then pulled up his pants and went upstairs to the house.
Charge 4
12SWT had celebrated his ninth birthday in July 2011 before you offended against him for the third time. In SWT's VARE he thought it was his 10th birthday, but the evidence from DHS records proved that he was nine years old at that stage.
13You went to SWT's bedroom and told him to go to the caravan. SWT refused to do so. You grabbed SWT and told him to go to the caravan if he did not want it to happen to his younger brother and sister. SWT complied with your instruction after you made this threat to him. SWT went to the caravan. You closed the door of the caravan and told him, 'You know what to do'. SWT pulled down his clothing and lay on his side on the bed. You penetrated his anus with your penis. Your sexual assault on this occasion was longer than the previous two occasions. You ejaculated on the blanket on the bed in the caravan.
14After you were finished, SWT got up from the bed, pulled up his clothes and went back into the house and hugged his little brother and sister. As I say, he was nine years old. SWT did not make a complaint about this offending to any person at the time. He and his siblings were relocated interstate by DHS.
15In 2019, other allegations of sexual offending were made against you in respect of another young male. DHS officers then visited SWT at his interstate home and it was there that SWT made his first complaint about your offending against him years before. At the time of his complaint SWT was 17 years old.
Charges 5, 6 and 7
16Your victim for Charges 5, 6 and 7 will be referred to as RA. RA had been living in your biological parents' home since 2004. RA and his younger half-sister were placed in the care of your parents by DHS. In effect these two children grew up as children in your parents' family.
17In 2014 between January and November you lived in a caravan at the front of your parents' home. You were 25 years old; RA was 13 years old.
Charge 5
18Your first offence against this victim, RA, occurred in the following circumstances. You offered your victim an opportunity to play on your Xbox if he came to your caravan. Your victim took up your invitation. Once in the caravan you got your victim to sit on your lap. You were both facing the monitor screen for the Xbox. You then removed your victim's pants and underwear to his knees. You had pulled your own pants down, so you were bare skin to bare skin with your victim.
19You have then lifted your victim up and penetrated your victim's anus with your penis. You held your victim's waist and moved him up and down on your lap. This assault lasted for a couple of minutes. Your victim got up, pulled his clothing up and left the caravan to return to his room in your parents' home. Your victim told no one of your offending at that time.
Charge 6
20Approximately a short time after those events referred to in Charge 5 your victim was again playing on your Xbox in the caravan. You were both sitting on the bed in the caravan. You had reached over and dragged your victim towards you. You had no shirt on and your lower body was covered by a blanket. Under the blanket you were naked.
21You pulled down your victim's pants and underwear. You then penetrated your victim's anus with your penis whilst you had him on your lap. You moved your victim's hips up and down in the same manner as you had done on the first occasion with him, which was Charge 5.
22Your victim went to leave the caravan and you grabbed his underpants, causing them to rip. I accept that your victim changed out of those ripped underwear when he returned to his room in the home and placed them in the drawers under his bed.
Charge 7
23Approximately a month after the events referred to in Charge 6 your victim got very sunburnt on his lower back.
24Your brother Connor[2], that is a biological brother, asked you to put some aloe vera on RA's back. Connor was playing his Xbox in his bedroom, which was within your parents' home. Again you pulled your victim's pants down and the underwear down, pulled your own jeans down to your knees, bent the victim forward and penetrated his anus with your penis. Your victim thought you had put the aloe vera on your penis, because it felt cold. Your victim asked you if you were using your finger to penetrate him and you responded, 'Ha-ha, no'. You withdrew your penis, pulled up your underpants and left the room quickly.
[2] a pseudonym name.
25Your victim first made a complaint about your sexual assaults on him to his half-sister in August 2017. Other people were told of your offending by your victim up to the time of his statement to police, which was made in October 2019.
26You exercised your right to make a ‘no comment’ in the record of interview in respect of both of these victims. You did not give evidence in the trial. Again that was your right.
Victim Impact Statement
27Exhibit “A” on the plea hearing was the victim impact statement dated 2 February 2022 filed on behalf of RA. It was read into the record during the plea hearing. RA set out the impact of your offending against him.
28He states he feels diminished as a person, he has trouble sleeping despite taking medication to help him to get to sleep, he conducts himself by dress and behaviour so as not to draw sexual interest from other people. He eats very little and has trouble working. He states he has lost and feels betrayed by his guardians, which I took to be your biological parents. He has required the treatment of a psychologist to assist with his mental health. The impact of your offending on RA's well-being has been significant.
29Your victim SWT did not make a victim impact statement. In the course of his evidence in the trial he described the arrival of the DHS worker where he lived interstate and her enquiries about your offending against him as 'ripping the scab off a sore'. It was a short, sharp description of the pain and injury which SWT had tried to put behind him when he had moved interstate.
Your personal circumstances
30You are now 32 years old. When you offended against SWT you were 21 years old. Your offending against RA occurred three years later when you were 24 years old. You are one of four boys of your biological family. Your mother was a school teacher, your father was a teacher's aide.
31In your time growing up in the family home your parents were foster carers for up to 50 children. Your parents adopted RA and his half-sister. In effect RA had grown up as your youngest brother.
32You have described your upbringing as normal, but due to the rotation of foster children from many and varied backgrounds you felt like you had, my words, “got lost in the crowd”. You have not suffered any sexual or violent abuse in your formative years. You completed your education to Year 10. You were a capable student but left school due to the bullying you were subjected to at school.
33Dr Charles Hamilton in his report dated 18 January 2001 notes a diagnosis of ADHD for you. You were 12 years old and prescribed dexamphetamine. Dr Hamilton in 2003 diagnosed depression and anxiety and prescribed Zoloft, originally 50 milligrams per day. You are still prescribed Zoloft, 150 milligrams a day, to assist with your depression symptoms.
34In 2014 you moved to Bali. Prior to that move you had commenced an apprenticeship in the building industry but did not complete it. You also worked as a labourer for a number of years.
35In 2014 you attended your GP on two occasions. The first occasion was May 2014, with a complaint of left scrotal mass. You gave Dr Dang, the general practitioner, a history of a two and a half-year relationship with a male partner. This was also the period you offended against RA. The second occasion was for complaints of low mood and depression in October 2014, which was made to Dr Zheng. Again your prescription of Zoloft was reactivated.
36In late 2014 you moved to Bali and commenced a microfinance business there. You continued that business with Balinese employees until your arrest here in Australia in October 2019 for offending against another victim not part of these proceedings. You have been in custody for that offending since 7 October 2019.
37You have the support of your family. There are six separate references, which were part of Exhibit 3, setting out how sorry you are for the impact of your offending on your victims. The references make it clear that your family will give you a home and support on your release from custody.
38You have described a history of alcohol abuse from the age of 14 years to the time you left to go to Bali when you were aged 25. Your offending occurred during the period of your alcohol abuse, but that condition was not a feature of any of your offending. Your prior criminal history relates to a driving under the influence in 2009 and a breach of the CCO imposed for that offending in 2010. Your prior criminal history is not relevant to the present sentencing process.
39Relevantly on 8 December 2020 you were sentenced for one charge of sexual penetration of a child under 16 years. You were sentenced to a head sentence of five years and four months with a non-parole period of three years and eight months. You have been in custody both on remand and serving that sentence, as I say, since 7 October 2019. The offending which resulted in that sentence post-dated your offending in this proceeding by some five years. You have served approximately 30 months' imprisonment as a result of the 2019 offending.
Sentencing considerations
40The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.
41I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society. I am also required to take into account current sentencing practices in fixing your sentence.
42That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for those sentences at the time. I have considered the statistics and the current sentencing practices, mindful that each case must be considered in light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another.
43Current sentencing practices are only one of the sentencing considerations I must apply. A just and appropriate sentence will be informed by the nature of the sexual acts, the surrounding circumstances and the offending incidents, threats made at the time of the offending, the frequency and persistent nature of the acts, the number of victims, in this case two, the age and personal circumstances of each victim and the impact of the offending on each victim.
44Your offending is extremely serious. Your offending was sustained over a period of time in respect of each victim. Your offending is repugnant and abhorrent behaviour, taking advantage of young, vulnerable children.
45The seriousness of your criminality is indicated by the following factors:
(1) the two victims were living in your parents' home as foster children, that is a breach of trust on your part;
(2) your first victim, SWT, was eight to nine years of age at the time of your offending, you were 21 years of age. That is an age gap of 12 to 13 years;
(3) you knew SWT was placed in the care of your parents as a foster child and was a vulnerable child;
(4) on one occasion you threatened SWT with offending against his younger siblings if SWT did not comply with your sexual demands;
(5) your offending against SWT occurred on three separate occasions over a period of six months;
(6) your second victim, RA, was effectively a long-term member of your parents' family. Originally a foster child, your parents adopted him and his half-sister;
(7) at the time of your offending against RA he was 13 years old and you were 25 years old, an age difference of 12 years;
(8) you offended against RA on three separate occasions in a three-month period;
(9) your offending against both victims was brazen;
(10) your offending against these victims extends over a period of four years. The offending is not an isolated lapse of judgment by a young man;
(11) you made and controlled the circumstances of your offending on each of the occasions;
(12) you never used a condom on any of the occasions of sexual penetration, increasing the risk of sexually transmitted infections;
(13) you showed no remorse or empathy for the effect of your offending on each of your two young victims; and
(14) your offending on each occasion was a gross breach of trust to your youngest and most vulnerable family members.
46I note that you have expressed sadness and the impact of your offending to your father, which was part of Exhibit 3. Your mother refers to your remorse for your offending, also part of Exhibit 3. I am not satisfied that you have shown genuine remorse for your offending. Your mother confirms you maintain your innocence consistent with the conduct of the trial in this matter.
47I assess your prospects of rehabilitation as guarded. You have no relevant prior convictions, but for three separate victims of young age you have offended when you were 21, 24 and, later, 30 years of age. There was no forensic assessment report in this proceeding about an assessment of your paedophilic tendency or other sexual deviant behaviour. You do not accept your offending when you were 21 and 24.
48On the positive side of your rehabilitation your family, parents and brothers still support you and in their references, all set out in Exhibit 3, set out their intention to house and assist you upon your release from custody.
49You have been previously convicted and sentenced for a serious sexual offence on 8 December 2020. Under the serious offender provisions of the Sentencing Act, on your conviction and sentence to a term of imprisonment in respect of Charge 2 I am required on the sex offence charges thereafter to regard the protection of the community from you as a principal purpose for which the sentence is to be imposed.
50If necessary in order to achieve the purpose of protecting the community I am empowered under s6D of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offences. This means that the sentencing task in respect of Charges 3 through to 7 on the indictment is to be undertaken on the basis that the protection of the community from you is a principal purpose for which this sentence is imposed. To achieve this purpose a sentence may be imposed longer than that which is proportionate to the gravity of the offences considered in the light of the objective circumstances.
51Section 6E of the Sentencing Act also requires that unless I otherwise direct with respect to Charges 3 through to 7 on the indictment the sentences I impose on you are to be served cumulatively. I note here the Crown did not call for a disproportionate sentence or for the cumulation contemplated either in s6D or 6E of the Sentencing Act, allowing for the matters which I have already outlined. In my view it is appropriate to impose only the degree of cumulation to which I subsequently refer, reflecting, as it does, several episodes of offending. To do otherwise may produce a sentence which is not appropriate and is unjust.
52I have taken into account the issue of delay between the time of your offending and the finalisation of the charges at trial in 2021. For the matters the subject of Charges 1 to 4 the delay is 11 years. You were 21 years of age at that time. For the matters the subject of Charges 5 through to 7 the delay is eight years. You were 24 years at the time of that offending. If you were apprehended and convicted at that time you would have been sentenced as a youthful offender. In the period since those offences, that is when you were 21 and 24, you have offended as a 30-year-old. That offending and the sentence diminished the other aspect of delay, which usually involves rehabilitation and a lack of offending in the interim period between the offending and the determination of guilt.
53There is no pre‑sentence detention applicable to these sentences, as your time on remand was fully accounted for at the time of your sentence on 8 December 2020.
54I take into account that for nearly all of the time you have been in custody you have been subjected to the COVID-19 restrictions for prisoners. These restrictions include multiple occasions of quarantine and lockdowns due to virus outbreaks within the prison system. You have not been able to receive personal visits from your family members. The availability of courses and counselling are reduced due to the COVID-19 restrictions. The effect of the pandemic restrictions is to make your time in custody more onerous than at normal times.
55In sentencing you I am required to sentence you for each of the seven charges on the indictment. This means I must consider the sentencing principle of totality. Further, you are already serving a sentence of five years and four months with a non-parole period of three years and eight months, which was imposed on 8 December 2020. At the time of this sentence you have served approximately 30 months of that sentence.
56I am required to stand back and look at the overall sentencing picture and decide whether the total of what would otherwise be an appropriate sentence is a fair and reasonable sentence to impose on you. The totality principle was stated by DA Thomas in 'Principles of sentencing' as follows:
'The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate". The principle has been stated many times in various forms: "When a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong"; "When ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences"’.
'The principle applies to all situations in which an offender may become subject to more than one sentence where sentences are passed on different counts in an indictment or on different indictments where the offender is subject a suspended sentence or a probation order where he is already serving a sentence of imprisonment makes appearances in different courts within a short space of time. In all such cases the final duty of the sentencer is to make sure that the totality of the consecutive sentences is not excessive'.
57These statements of principle were approved by the Court of Appeal in Victoria in DPP (Cth) v Haidara [2013] VSCA 149.
58I am required to fix a new, single non-parole period in respect of all the sentences to be served under s14 of the Sentencing Act. The new non-parole period commences today.
59Your offending took place over an extended period of time in respect of the three separate victims. I am sentencing you for the first two of your victims in the time of your offending against them. The principle of totality means that I have to take into account your sentence for your offending against the third victim so as not to impose a crushing sentence upon you.
60The sentencing principles of general and specific deterrence, just punishment, denunciation of your actions and the protection of the community dictate that the only appropriate sentence is a substantial term of imprisonment with a non-parole period fixed. Would you stand, please.
61In respect of Charge 1 you are convicted and sentenced to two years' imprisonment.
62In respect to Charge 2 you are convicted and sentenced to five years' imprisonment.
63In respect to Charge 3 you are convicted and sentenced to five years' imprisonment.
64In respect to Charge 4 you are convicted and sentenced to five years' imprisonment.
65In respect to Charge 5 you are convicted and sentenced to four years' imprisonment.
66In respect to Charge 6 you are convicted and sentenced to three years' imprisonment.
67In respect to Charge 7 you are convicted and sentenced to three years' imprisonment.
68I declare the following cumulation: three months of the sentence in Charge 1. Sorry, the base sentence is Charge 2, five years. Three months of the sentence in Charge 1, nine months of the sentence in Charge 3, nine months of the sentence in Charge 4, three years in respect of the sentence in Charge 5, six months in respect of the sentence in Charge 6 and six months in respect of the sentence in Charge 7 are to be served cumulatively upon the base sentence, which is five years in Charge 2. That is a total effective sentence of 10 years and nine months' imprisonment.
69I fix a non-parole period of six years and three months. In respect of the sex offenders register you are placed on the sex offenders register for a period of life. Pursuant to s6F of the Sentencing Act I declare that I have sentenced you as a serious sexual offender, as I said during the course of my reasons, for Charges 3 through to 7.
70First of all is the mathematics correct, or the arithmetic, and, secondly, is there anything else I need to do?
71MR GOODFELLOW: I think so, Your Honour, and nothing else.
72MR PIRRIE: I'm just trying to do that, Your Honour.
73HIS HONOUR: Do you want me to repeat the cumulations?
74MR PIRRIE: I get eight years, Your Honour, yes.
75HIS HONOUR: You get eight?
76MR PIRRIE: Yes.
77HIS HONOUR: The base sentence is five years on Charge 2.
78MR PIRRIE: Yes, Your Honour.
79HIS HONOUR: Then add to that the following: three months in Charge 1, nine months in Charge 3, nine months in Charge 4, three years in
Charge 5 - - -80MR PIRRIE: Three years? Sorry, yes, I did the same mistake as my instructor. I tried to write in a hurry, I had three months instead of three years.
81HIS HONOUR: Right.
82MR PIRRIE: Yes. So that's - - -
83HIS HONOUR: And add six months and six months for the last two.
84MR PIRRIE: Yes. So we did exactly the same thing.
85HIS HONOUR: The bit I hadn't declared is that this sentence is to be served concurrently with the sentences currently undergoing. Mr Goodfellow, I've just got the sex offender register papers. If I could ask you to get your client to acknowledge his receipt of them.
86MR GOODFELLOW: Yes, Your Honour. Thank you.
87HIS HONOUR: Sorry, when I was announcing - - -
88MR GOODFELLOW: Sorry.
89HIS HONOUR: You're right. I'll wait till you come back. When I was reading out my reasons for sentence I referred to the indictment number as K12611606.1; it should be point‑3.
90MR GOODFELLOW: Yes, Your Honour.
91HIS HONOUR: Mr Pirrie, do the calculations now sound right?
92MR PIRRIE: They sound right, Your Honour, yes.
93HIS HONOUR: You agree the arithmetic's the same, Mr Goodfellow?
94MR GOODFELLOW: I do, Your Honour.
95HIS HONOUR: Thank you. Do you wish to speak to your client here rather than downstairs?
96MR GOODFELLOW: Could I have just a moment, Your Honour.
97HIS HONOUR: I'll just ask the officers first of all. Officers, can you facilitate that, please, that Mr Goodfellow can speak to his client rather than go down through the quarantine systems downstairs.
98CORRECTIONS OFFICER: Yes, Your Honour.
99MR GOODFELLOW: Thank you, Your Honour.
100HIS HONOUR: Thank you for that. Thanks, counsel, for your assistance.
101MR GOODFELLOW: As Your Honour pleases.
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