Director of Public Prosecutions v McManus

[2014] VCC 1181

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

AT BENDIGO
CRIMINAL JURISDICTION

CR-14-00956

DIRECTOR OF PUBLIC PROSECUTIONS

v

STUART MCMANUS

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JUDGE:	HIS HONOUR JUDGE PATRICK
WHERE HELD:	Bendigo
DATE OF HEARING:
DATE OF SENTENCE:	25 July 2014
CASE MAY BE CITED AS:	DPP v McManus
MEDIUM NEUTRAL CITATION:	[2014] VCC 1181

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For The Queen	Mr P. Jones
For the Offender	Mr A. Shears

HER HONOUR: 

1Stuart James McManus, you have pleaded guilty to one charge of sexual penetration of a child under 16.  The maximum penalty for that offence is ten years' imprisonment.  The circumstances of your offending are set out in the Summary of Prosecution Opening, which was tendered as Exhibit A.  This offending occurred on 2 July 2013.  At that time you were 18 years and three months old.  You knew a young girl who was at the time 13 years and eight months old.  I accept that you did not know her age at that time.

2You and the complainant were introduced to each other through another male.  You became friends on Facebook.  At about 5 pm on 2 July 2013, a friend of yours; a male friend of yours told you something about the complainant.  After hearing that you made contact with her via Facebook and asked her to meet with you.  She replied and you met straight after this conversation.  I am satisfied that your purpose was in order to engage in some form of sexual contact with her.  At about 9 pm that evening, you drove and then walked to a bush area.  There you and the complainant engaged in sexual activity which included the complainant giving you oral sex.  After that had finished, you asked the complainant not to tell anyone.  When you got home, you again inboxed her on Facebook, and asked her not to tell anybody.

3You attended Kyneton police station on 7 July 2013, you were interviewed and made admissions.  You said that the complainant was 15, maybe 16, pushing 16 though.  You said that you regretted this incident after you found out that she was only 13 years old. 

4The victim has been given an opportunity to provide a victim impact statement but has declined. 

5In sentencing you, I have taken into account your personal circumstances.  An amount of material was filed on your behalf as Exhibit 1.  Included in that material was a report from Ms Pamela Matthews psychologist, dated 20 July 2014.  In that report, Ms Matthews outlines your personal circumstances.  Your counsel also outlines your personal circumstances in his written submissions.

6In summary, you were born in Scotland and came to Australia with your parents and ultimately began living in country Victoria.  You appear to have had a very stable and unremarkable childhood, apart from with your family being able to engage in an amount of international travel. You have done reasonably well at school, and achieved a Year 11 pass, although you in Year 12 you withdrew during the school term having failed one test.  It appears that that occurred in the context of this matter weighing heavily on you.  You have also been a very successful bike rider in the past, although you have not been engaging in that activity recently, as I understand it.  You have had difficulties in obtaining an apprenticeship but are currently undergoing a one month trial with a roofing and tiling company.  You have been enjoying that and believe that this successful trial will lead to an ongoing apprenticeship in roofing and tiling.

7You appear to have had normal and age appropriate social contacts and experiences up until now.  You report some social marijuana use, but in general have no drug or alcohol problems. 

8You have no history of any prior offending, and I accept that you have not engaged in any subsequent offending.  Your mother has written a character reference for you and speaks highly of you. 

9Ms Matthews in her report says that it is her very firm view that your behaviour is not a product of any sexual deviance or aberrant behaviour.  She considers that your risk of re-offending is low and would be further lowered to the point of "negligible further risk" if you were given appropriate treatment and intervention.  Ms Matthews makes some recommendations as to what she considers to be the appropriate treatment intervention for you and I support her recommendations.

10Ms Matthews says that you are currently presenting with reactive depression and anxiety.  That appears to be linked with the pressure on you resulting from this situation, which has been hanging over your head since you were interviewed by police in July 2013. 

11In sentencing submissions, your counsel particularly relied on your early plea of guilty, and your cooperation with the police.  Your counsel said that you had expressed remorse.  He also relied on Ms Matthews' assessment of your risk of re-offending being low.  Your counsel relied on the application of the principles set out in Mills (1998) 4 VR 235, which he submitted apply to you because of your young age at the time of the offending and your current young age. Your counsel referred to the case of Clarkson v EJA (2011) VSCA 157, and suggested that your offending fell at the lowest end of the spectrum of the offences of this category. Your counsel referred to a lack of aggravating circumstances, including any features of force or duress or significant age difference or power imbalance.

12Your counsel also relied on the delay in this matter, and the applications of Verdins' principles, being Verdins (2007) VSCA 102, in respect of your current situation. Your counsel submitted that general deterrence and specific deterrence ought to be moderated as ought any proposed punishment. Your counsel submitted that you ought not to receive a sentence of imprisonment and that your rehabilitation could be best addressed within the community. Your counsel referred to current sentencing trends and submitted that the appropriate sentence in your case would be a community correction order without conviction.

13The prosecutor in sentencing submissions took no issue with the community correction order being within range.  The prosecutor also made some further submissions in relation to conditions that might be imposed in such an order. 

14Mr McManus, the offence with which you have been charged and to which you have pleaded guilty is a serious one.  The activity of having sexual relations with children under 16 has been made unlawful in order to protect children.  The purpose of the law is to protect children against their own bad decisions, as well as against the bad decisions of other people. 

15It is well known in the community that young persons under the age of 16 are not able to give consent to sexual relationships involving sexual penetration.  You were 18.  You were not very much into your adult years, but you were an adult.  You were old enough to know that you ought to have checked.  You yourself said that you thought she might be 15 or 16.  It is understandable that a girl of 13 years and eight months could be confused with a 15 year old or 16 year old, but you should have been alert enough to check.  That is particularly the case because you made a deliberate effort to contact her.  As I said, I am satisfied you did that in order to have some form of sexual interaction with her given what your friend had told you.  I accept that there was a lack of aggravating features in your offending.  I accept that your offending is at the low end of this type of offence. 

16You are entitled to a considerable discount in sentence because of your plea of guilty and your admissions to the police.  You have saved the trauma and expense of a trial.  I also consider that your plea of guilty and admissions are an expression of your remorse in this case for your offending. 

17You have no prior criminal offending and no subsequent offending.  I consider that your prospects for rehabilitation are very good indeed.  Ms Matthews says that you have no particular psychological or other problems which are going to lead you into this kind of offending again.  I expect that this matter has been weighing heavily on you and will mean that you will be much more cautious in future.  You clearly have ability in various respects.  It appears that you are doing well at your work and it is to be hoped that you will be able to make a successful career in the building industry.

18I consider that specific deterrence - that is the need to deter you from further offending need only be given low weight in sentencing you.  I also consider that community protection need be given little weight in the sentence to be imposed on you.  I have denounced your behaviour, and the sentence needs to reflect that. 

19The sentence also needs to be one which deters other people from engaging in this behaviour.  That is very important in order to protect children from engaging in really significant sexual behaviour before they are old enough to consent to that behaviour.  The case that Mr Shears referred to of Clarkson refers to studies that have shown that it is harmful for children to engage in sex before they are ready to do so.  As I have said, general deterrence is an important sentencing factor and I think that punishment ought to be also included in the sentence.  It is my view that in the circumstances of this case, those sentencing purposes can be appropriately met by the imposition of a community correction order without conviction.  I say without conviction because of your young age and your excellent prospects of rehabilitation.

20Accordingly, I do intend to impose a community correction order on you if you agree. 

21Could you please stand up?  The order that I would propose to make would go for a period of 12 months.  The order would include conditions that you be subject to the supervision of the community corrections officer.  It would also include a condition that you do sixty hours of community work over the 12 months.  It would also include a condition that you engage as directed in treatment and rehabilitation, being a referral to a psychologist to deal with your current anxiety and depression and also any matters which may involve counselling you about future behaviour.  I would make the order that any hours of treatment that you engaged in would be deducted from the work hours. 

22And I understand that you have spoken to the community corrections officer, is that right?

23PRISONER:  (no audible response).

24HER HONOUR:  Did the community corrections officer explain to you the core conditions of the order, for example that you cannot leave Victoria without permission and so forth.  Did she explain those things to you?

25PRISONER:  Yes.

26HER HONOUR:  Are you prepared to undertake the order?

27PRISONER:  Yes.

28HER HONOUR:  Do you consent to the order being made?

29PRISONER:  Yes.

30HER HONOUR:  All right, in that case, I will come to that in a minute and I will make the orders that I have explained.  An application has been made for the taking of a forensic sample from you.  I am refusing to make that order.  I am not satisfied in the circumstances of this case that the making of that order is justified.  I say that because the circumstances of your offending, your excellent prospects of rehabilitation and your young age.

31It is mandatory because you have the finding of guilt in respect of one Class 1 offence for the purposes of the Sex Offenders Registration Act, that you will be required to report and be subject to the provisions of that Act for 15 years. Mr Shears may be able to advise you but there are applications that can be made under that particular Act, but I will leave that for Mr Shears to tell you about.

32For now, it is a matter of you being given the paperwork and asked to sign it in relation to the community corrections order, once I have checked it.  I will check the CCO first.  The first thing that is going to happen before we get to that one is that you are going to be given the paperwork about the sex offender program and asked to say that you have received that material.  Mr Shears, if you could go with Ms Ollquist and deal with that and then I will come back to the community correction order.  Can you just take a seat for a moment, Mr McManus?

33Mr McManus, if you could stand up again?  I should also make it clear that I have taken into account delay and the application of Verdins' principles in moderation of sentence.  This matter has also been hanging over your head for some time.  That period of time is not particularly unusual in cases such as this, but given your young age, I accept that the matters have been weighing heavily on you.

34There is a further thing I would like to say to you before you sign the community correction order.  I am making this order understanding that these orders are not necessarily easy to do.  You will have to make sure that you cooperate with the community corrections people.  If you cooperate with them, then they will tend to cooperate with you.  For example, if you can't complete your work hours in a particular timeframe, then arrangements can be made.  But you need to cooperate with them in order to do that.

35For the next 12 months, you are going to be required to be very careful about your behaviour because if you behave badly and breach the order, by re-offending or by not doing what they tell you to do, you can be brought back before me and re-sentenced.  So you understand that?

36PRISONER:  Yes.

37HER HONOUR:  And you are still prepared to sign the community correction order?  All right.  Mr Shears, if you could again go with Ms Ollquist and ask Mr McManus to sign that, thank you.  Can I just make sure that that is without conviction. 

38So I think that's all right.  Thank you, and the 6AAA declaration is that but for your plea of guilty, I would have sentenced you to a community correction order with conviction of 18 months duration with 120 hours of unpaid community work.  So that reflects that - that alteration can be made.  Otherwise, I think we are right.  Is there anything else I need to do Mr Jones?

39MR JONES:  No, Your Honour.

40HER HONOUR:  Thank you, everybody can be provided with copies.  Mr McManus, I wish you good luck with your employment.  I hope that works well, and I hope - I do not mean to offend you, but I hope we never see you again in these courts.

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