Director of Public Prosecutions v McMahon (a pseudonym)

[2020] VCC 223

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

FRED MCMAHON (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	4 March 2020
DATE OF SENTENCE:	6 March 2020
CASE MAY BE CITED AS:	DPP v McMahon (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 223

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	S. MacDougall	Office of Public Prosecutions
For the Accused	A Patton	Victoria Legal Aid

HIS HONOUR: 

1Fred Angus McMahon,[1] you have pleaded guilty to one charge of indecent act with a child under 16, two charges of use carriage service to transmit indecent communication, and two charges of sexual assault of a child under 16.  Those crimes carry maximum penalties of 10 years, seven years and 10 years respectively.  Charges 2 and 3, the transmission charges, are Commonwealth charges.

[1] This is a pseudonym.

2Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that, should you refuse to provide such a sample, police may use reasonable force to take it from you, and your representative will explain to you how to go about that.

3Next, because of the charges to which you have pleaded guilty, you will be placed on the sex offender's register, and I advise you that the reporting conditions on that register for Charges 2, 3, 4 and 5 will be for life.  I must ask you to acknowledge receipt of that.  Ms Tait, if you would not mind going down with my associate?

4MS TAIT:  Yes. 

5HIS HONOUR:  You pleaded guilty at an early opportunity.  You are still only 20 years of age.  You must get the benefit of the remorse you have ultimately expressed, and you must get the utilitarian benefit of that plea of guilty.  You do have prior findings of guilt, but they were in the Children's Court and are of no significance in this sentencing process.

6As I indicated the other day, I have got some concerns about the Crown opening in this matter.  But as the sentence to be imposed is essentially agreed to, I do not intend to go into any great detail.

7The charges are all one occasion charges.  They are not rolled-up and they are not representative.  The Crown opening, which I am going to refer to in a moment, treats them as if they are all somehow representative.  It also includes material which occurred when you were only 17 years of age, and therefore, could not have been part of any of the charges.

8I am not going to go through a dissection of all of those.  I have indicated the ultimate sentence is not suggested to be wrong, but I am very cautious of that.  It also causes difficulties with the victim impact statements.  Indeed, one of the victim impact statements says that all the offending against her occurred while you were still only 17.

9However, I do take those victim impact statements into account.  It is a little bit difficult, on the face of it, to ascertain how much of their personal difficulties actually relate to you, as opposed to having been raised in the residential units, but I am not going to buy into that sort of situation.

10The fact of the matter is, the offending was serious, you clearly knew it was wrong, and you persisted with it over a couple of years with five different victims.

11The Crown opening will be kept on file so it can be read.  I am not going to go through it in great detail, for the reasons that I have outlined.  It gives a false impression of what you are to be sentenced for.

12The circumstances are that you, at the time of the offending, were between

[2] This is a pseudonym.

15 and 19 years of age.  Wendy McMahon,[2] the first complainant, was 12 to 13 years of age the time of the offending and was your sister.

13The second complainant, Denise,[3] was 11 years old, and you were 18 years old, and was your sister.  You at the time with Wendy were 15 to 16 years of age, and accordingly, would have been in the Children's Court had the matter proceeded then, if you were charged at all.

[3] This is a pseudonym.

14The complainant Kirra Inglis[4] was 14 years of age, and you were 19 years of age. 

[4] This is a pseudonym.

15The complainant Michelle Linton[5] was 13 years of age when you were - well, 14, I think she must have been - when you were 18.

[5] This is a pseudonym.

16And Olivia Bendale[6] was 15 years of age, and when you were then 19.

[6] This is a pseudonym.

17In October 2017, investigators were notified that Wendy McMahon had disclosed to them that she had been sexually offended against by you.  On an occasion between 29 July 2015 and 28 July 2016, you were at your grandparents' home.

18You started watching movies with her in bed.  You pulled down her pants and started touching her on the vagina.  She told you to stop on multiple occasions, pleading with you and threatening to tell her grandmother what you were doing.  You continued to say to her, as you touched her vagina, 'You like that, don't you?', and you then touched her vagina with your penis.

19Whilst touching her vagina with your penis, you were touching other parts of her body, including her breasts.  That gives rise to Charge 1, said to have occurred at a period of time when you were around about 15 years of age.  You have, in your record of interview, admitted to that offending.

20Charge 2 is Olivia Bendale.  That is a charge of transmission, one of the transmission charges.  You, with her, when she was the age of 13 to 15 - obviously, this is a one-occasion count and I make that really clear - requested images of her.  You were requesting images, and made a call requesting those images, to 'make (you) feel better.'  In the ultimate, police found photos of her on your phone, but I do not know from which phone calls they came.

21In any event, this is a confusing set of circumstances, and as I say, I make it clear for about the fifth time that you are only to be sentenced for a on occasion.  Obviously, and I interpolate this, the other matters can be regarded as showing that these individual charges did not occur out of the blue.  They were certainly not one-offs.  In any event, at one stage you met with her in Warragul, and that is not part of the charge.  I do not propose to sentence on it.

22Charge 3 is Michelle Linton.  This is between April 2017 and continuing till
31 May 2018.  That cannot be right, because you did not turn 18 until January 2018, and accordingly, the charges are between these specific dates. 

23She said that you contacted her and constantly asked for nudes.  Again, it is a one-off charge, so I simply sentence on the basis of a call by you after you have turned 18 asking for the nude photos to be sent to you.  That call can also safely be found by me to have included you masturbating during the course of it.

24There is a number of things of a - a number of messages of a conversation,
but again, I will not go through those because it gets too complicated. 

25Charge 4 is Denise McMahon.  You caused her to touch your penis, and that occurred in the context of other sexual touching.  At that time, you were 18 and she was 11, and she said you - it would appear that you made her touch you, and that you ejaculated.  You, as with one of the others, endeavoured to somehow suggest that it may have been at her instigation.  But in any event, the charge is you putting her finger on your penis for a short period of time.

26Charge 5 is Kirra Inglis, and you both met in the residential care units in Wonthaggi.  You ultimately went to a park with her, and there was sexual activity that involved you rubbing your penis on her vagina.  That gives rise to Charge 5. 

27When interviewed by police, you essentially made admissions.  I have read the victim impact statements of two of the complainants, including Ms Linton.  I have already indicated there are difficulties because of the nature of the offending, but clearly, what you did had an effect upon them.  I take that into account.  Offending of this nature always, in my view, has some sort of detrimental effect, and that is obviously why - again, it was a serious criminal offence.

28You were 15 at the time of the first offence.  Charges 2 and 3, you had just turned 18.  They obviously are matters of significance.  It calls for the application of general deterrence.  In your situation, specific deterrence is a bit of a worry.  Denunciation would not be as high as it would be for someone older than you, and punishment must be appropriate but not out of proportion.

29The situation here is that with Charges 4 and 5, you fall to be sentenced under the standard sentencing regime.  I am aware that that process does not affect the instinctive synthesis approach.  In this case, the standard sentence is four years, but that is not a dominant or determinative factor in this sentencing process, and it is to be regarded simply as a legislative guidepost.

30I, in these circumstances, say that the offending in its general context is objectively not as anywhere near as bad as some of the objective matters that we have to deal with.  Clearly, you were older, but clearly, you were still very young yourself.

31The reasons that I will be giving for the sentence that I impose will be that you have pleaded guilty, you are still a very young person.  You were a very young person at the time, and when I look at personal matters to you, it is quite clear from the material that you were immature.  And whilst I do not have any assessment as to your actual psychological age at the time, I do not think it would have been all that different to the victims.  That of course does not apply to the 11-year-old.  That quite clearly is predatory. 

32I then look to matters personal to you.  I suggested - and what was sought by your counsel was a community corrections order.  You have already, on my calculation, spent 225 days in adult custody.

33I made it clear from the outset that I had been dealing with you at the time,
I almost certainly - even if you had been remanded as you had been, on a couple of occasions - given you Youth Justice.  That is not the situation now; that is, I cannot give Youth Justice with a community corrections order, and I do not know whether they would take you or not after you had done 225 days in adult custody.  That 225 days is very significant indeed for one as young and as vulnerable as you.

34The Commonwealth charges - the submission was that a bond would be appropriate.  That is my view:  that in the overall circumstances of this, that a community corrections order, concurrent with another community corrections order, is the appropriate disposition.

35I have the form with your community corrections order which says that you are suitable, and it says that you should have the programs with mental health programs to reduce reoffending and supervision, and I agree with all those propositions.

36I also have material relating to your early days.  And I do not know whether it serves much useful purpose going through it, but your counsel very succinctly described that in his remarks.

37You were clearly a socially disadvantaged child.  You were abused physically, sexually.  There was a history of parental chaotic relationships, and that is probably an understatement.  As I indicated, there was family violence involved.  Your mother passed away when you were five.  You subsequently resided with grandparents.

38You have been in foster homes.  You have been in residential care, and you have suffered significant trauma whilst in many of those situations or institutions.  You were diagnosed early on with a diagnosis of ADHD.  You were given dexamphetamine, which may explain some things.

39But in any event, you finished your schooling in Year 7.  Because of your background and because of your difficulties, you have problems making and sustaining friendships.  A child protection report from 11 February 2015 -
and I am only going to read a very small part of that, as I understand it is a confidential document, just simply said in one part:

‘Fred presents as a polite and directive young person who, however, suffers from mental health disorders due to exposure to trauma in his early childhood.  Fred presents as emotionally immature with a child-like demeanour, which is unexpected given Fred’s stage of adolescent development.'

40That report confirms what I said before.  It also says that you have been diagnosed, at that point in time, with a reactive attachment disorder and depression.  You were being medicated for depression by the age of 15. 
It is also clear that you had witnessed sexual abuse of another in your very early teens.

41A Dr Yasmin Blitz examined you in November 2016 and said that you presented with an overall performance in the very low range with an IQ of 70.  She said, and I accept, that that diagnosis means that you do indeed have a mild intellectual disability.  That expression has been pointed out in a number of decisions such as Muldrock as being very misleading to members of the community, as put onto a spectrum, it is very different to what most people have to deal with.

42However, bearing in mind your background and bearing in mind that diagnosis, you must get the benefit of that, particularly in terms of general and specific deterrence.  Moral culpability is hard to determine.  You were clearly aware that what you were doing was wrong, and indeed said to at least one of the victims that you knew it was wrong.

43Since the charges, you have spent two periods of time in custody,
as I understand.  From January to March in 2019.  You were released in March 2019 on Youth Justice-supervised bail.  And you were then charged with further offences.  As I understand it, they are yet to be finalised, and I have not had any indication as to what they are, and they do not really concern me.

44You were again remanded on 9 April through to 11 October, which is another 184 days.  You were released on further Youth Justice-supervised bail on
11 October 2019.

45Of some comfort in this sentencing process is the report that I have from Youth Justice that basically says you have been doing your best so far as all this is concerned.  You do have difficulties at times, but your link with the National Disability Support Scheme - and that has been since March of last year - is due for renewal, in fact, in a couple of weeks' time.  That is providing assistance to you.

46You have engaged in a development of a safety plan for high-risk young people, and you have been assessed as high-risk, and I think that is clearly correct. 
I do not have to go into, I think, in these circumstances, your actual personal difficulties that you suffer from.  Clearly, matters such as yours commonly have suicidal ideation, and that has been dealt with.  Again, I am not going to go through the process of embarrassing you by going into that detail.  Those involved in the matter know what all the circumstances are, and again, those documents can remain on file.

47In the end, I say you are a 20-year-old man who has engaged positively with Youth Justice since being placed on a supervised bail on 11 October, having attended the majority of your supervision appointments.  You have engaged with external supports, including YJCSS, within Australia and Better Futures.  You attend the care team meanings to participate in the development of your support plan.  You have self-referred to Headspace for additional support to address your mental health.  It says that you, at the moment, have stable accommodation.

48The prospects of your rehabilitation are always problematic in a situation such as this, I think.  You are at high risk of reoffending.  There can be no doubt at all.  What the court can really do is impose an appropriate punishment on what has already occurred, and endeavour for reasons of community protection to put in place a disposition which gives rise to as much protection as possible, which will be achieved by you being treated and coming to understand the difficulties, and coming to understand the consequences not only for you but for girls if you conduct yourself in this way with them.  As I say, I am not making any findings about your mental age, but I suspect it is not all that dissimilar to those 13, 14 and 15-year-old girls.

49In any event, taking all those matters into account, it is for those reasons that
I impose this sentence - and that satisfies, as I understand it, the requirements of the standard sentencing regime by way of explanation.  I will just sentence you as follows.

50On Charge 4, 90 days.

51On Charge 5, 90 days.

52They are separate victims, so I make that totally cumulative, which gives a total effective gaol sentence of 180 days.

53I direct that 180 days be reckoned as having been served under this sentence. 

54If you agree, you are then to be placed on a community corrections order on Charges 1, 4 and 5, which are the State offences.

55That community corrections order will be with conviction.  It will be for a period of three years.  It will include the following conditions:  treatment and rehabilitation for mental health, treatment and rehabilitation for programs to reduce reoffending, and supervision.

56Obviously, if Corrections think fit, during that three-year period of time,
the reduced reoffending provision will allow for you to undertake the sexual offender's course.  Mind you, that is probably very appropriate, but it is a matter for them, not me.

57All right.  On Charges 2 and 3, a concurrent CCO with exactly the same terms and conditions.  I do that because of the difficulties of the indictment containing both Commonwealth and State legislation.  And those two community corrections orders are to be undergone concurrently. 

58All right.  You stand up for me for a moment, if you would.  You understand, Fred, that these orders go for a few years?  If you breach them or mess up, you get brought back to get resentenced.  All right?  Now, I know you have already done two periods of time in gaol, and I am sure it was not a pleasant experience for you.  If you get brought back before me for any offending or doing anything wrong, anything like what you have done here, you will be going back.  Do we clearly understand each other?

59OFFENDER:  Yes, Your Honour. 

60HIS HONOUR:  All right.  Sorry, the summary charge.  I will just convict and discharge.

61Section 6AAA, we will make 270 days with a CCO, or CCOs. 

62So there is nothing else I need to do?  No other orders I need to make?  I have made the disposal orders already.

63MISS MacDOUGALL:  That's correct, Your Honour.

64HIS HONOUR:  All right.  You can come out of there now.  Yes, all right. 

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