Director of Public Prosecutions v McMasters (a pseudonym)
[2023] VCC 718
•4 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DUNCAN MCMASTERS (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Latrobe Valley; Melbourne | |
DATE OF PLEA HEARING: | 15 November 2022; 2 February 2023; 27 April 2023 | |
DATE OF SENTENCE: | 4 May 2023 | |
CASE MAY BE CITED AS: | DPP v McMasters (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 718 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sexual Penetration of a Child Under the Age of 16; Producing Child Abuse Material
Legislation Cited: Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:Clarkson v R; EJA v R (2011) 32 VR 361; Roberts v R [2023] VSCA 92; DPP v Spottiswood [2021] VSCA 146; Brown v R (2019) 59 VR 462; McPherson v R [2021] VSCA 53; Director of Public Prosecutions (DPP) v Dalgleish (Pseudonym) (2017) 262 CLR
Sentence: 3 Years and 5 Months Imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Caruso | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr S. Gardner | Warren, Graham & Murphy Lawyers |
HIS HONOUR:
Introduction
1At the outset, I remind those listening that publication of anything likely to identify a complainant in a sexual offences case is prohibited by an Act of Parliament. In my published remarks, a pseudonym will be used for the name of the victim and her family.
2Duncan McMasters[1], you have pleaded guilty to four charges of Sexual Penetration of a Child Under the Age of 16, which carries a maximum penalty of 15 years' imprisonment; and one charge of Producing Child Abuse Material, which carries a maximum penalty of 10 years' imprisonment.
[1]A pseudonym.
Circumstances of the Offending
3The circumstances of your offending were set out in the Summary of Prosecution Opening for Plea dated 14 September 2022, Exhibit 1 at your plea hearing. That document sets out the factual basis for the offending in relation to which you now fall to be sentenced. Your offending can be briefly summarised.
4Your offending essentially relates to a sexual relationship that you had with your victim in this matter, Adele Ryan[2] (hereafter referred to as ‘Adele’), who was 15 years of age at the time. Between 28 March 2021 and 31 October 2021, when you were aged 24, you engaged in 16 instances of sexual penetration with Adele. On one occasion, you filmed the encounter on your mobile phone, and sent it to her.
[2]A pseudonym.
5In November 2020, you were working on a casual basis at a hotel in Sale. Adele’s grandmother Leslie Thomas[3] also worked there. In November of 2020, through an introduction by her grandmother, Adele began working at the hotel whilst she was maintaining full time high school studies, and it was in this context that you first met Adele. All staff, including you, were aware she was 15 years old. The two of you quickly became close, and began communicating through social media, primarily Snapchat. During these communications, you asked Adele questions of a sexual nature, and about past sexual experiences. You also discussed her age.
[3]A pseudonym.
6Your first instance of sexual penetration with Adele occurred on 28 March 2021. On that day, Adele and her 15 year old friend attended your home in Sale. You lived at this address with your then housemate, Riley Hogan[4], who was also present at the time. After giving Adele an alcoholic drink, you both went into your bedroom. You and Adele kissed and touched one another. She performed oral sex on you, in which you inserted your penis into her mouth, and you performed oral sex on her, in which you inserted your tongue into her vagina. Following this, you sexually penetrated her vagina with your penis. You were wearing a condom during this sexual intercourse. Your housemate, Riley, knocked on your bedroom door, and advised you that what you were doing was illegal. You were dismissive of this, closed the door and returned to the bedroom.
[4]A pseudonym.
7Following this incident, you and Adele had reduced contact until approximately May or June of 2021, some two or three months later. You recommenced messaging Adele, telling her you loved and cared for her. You also purchased gifts for her. The two of you commenced dating on 14 July 2021.
8After the first instance of sexual penetration on 28 March 2021, the next instance of sexual penetration did not occur until on or after 1 August 2021, by which time you were dating each other. Ongoing instances of sexual penetration took place between the period spanning 1 August 2021 and 14 September 2021. Together with the acts of sexual penetration on 28 March 2021, these instances of sexual penetration, excluding an instance of anal penetration, form the basis of Charges 1 to 3 on the Indictment, rolled up charges of sexual penetration of a child under the age of 16 incorporating multiple instances of penile/oral, penile/vaginal, and tongue/vaginal penetration.
9On a date between 1 August 2021 and 31 August 2021, you met Adele in your car. You had sexual intercourse with her in your parked vehicle, penetrating her vagina with your penis. You wore a condom during this offending.
10On an occasion between 1 August 2021 and 14 September 2021, you were showering together at your home, when you inserted your finger and then penis into Adele’s anus. This single instance of anal penetration of Adele with your penis forms the basis of Charge 4 on the Indictment, sexual penetration of a child under the age of 16.
11On a date between 26 August 2021 and early September 2021, you picked Adele up in your car and drove her back to your house. She had told her parents she was getting her nails done. There, you had sexual intercourse with Adele on your bed, penetrating her vagina with your penis whilst wearing a condom. During the intercourse, you retrieved a knife from your bedside table, using it to make a superficial cut down Adele’s sternum, causing her to bleed. You then licked the blood from the incision off her chest. You then used the knife to cut your initials into the skin on Adele’s back, this cut later observed by her friend in a school bathroom. You had previously discussed with Adele your interest in 'knife play'. Still in the bedroom, you performed oral sex on her, inserting your tongue into her vagina. The two of you then showered together, where you sexually penetrated her vagina with your penis, whilst wearing a condom, then had her perform oral sex on you, in which you penetrated her mouth with your penis. After this, you drove Adele to her nail appointment.
12In September 2021, you and Adele regularly met up to engage in sexual activity in your vehicle. On most of these occasions, you penetrated her vagina with your penis. You wore a condom during these episodes of sexual intercourse. On one occasion, you and Adele performed oral sex on each other in the backseat of your vehicle, and on another occasion on 9 September 2021, you had her perform oral sex on you whilst sitting in the front seat of your vehicle. On this occasion, you used your mobile phone to record a portion of the sexual activity, where Adele is performing oral sex on you, the resulting video being 60 seconds long. You later sent this video to Adele. Your conduct in relation to this video forms the basis of Charge 5 on the Indictment, produce child abuse material.
13On another occasion in mid-September 2021, you picked up Adele in and drove her to your house. On this occasion, you engaged in further sexual activity, inserting your fingers into her vagina, and then your penis into her vagina. You wore a condom whilst this occurred.
14The final instance of sexual penetration occurred on 14 September 2021. On that day, you collected Adele in your vehicle and returned her to your address in Sale. You cooked a meal for the two of you. Later, on your couch, you had her perform oral sex on you, in which your penis penetrated her mouth. You then penetrated her vagina with your penis, again wearing a condom during this episode of sexual intercourse.
15In early October 2021, the video sent by you to Adele was discovered by Adele’s grandfather and primary carer, Ian Thomas[5], on a mobile phone you had given her. On 9 October 2021, he reported this matter to police, prompting an investigation. The next day, Adele participated in a VARE.
[5]A pseudonym.
16On 12 October 2021, a search warrant was executed at your address and a number of items, including a mobile phone, iPod, other data storage devices, and a knife were located and seized. You were present at this address and were subsequently arrested. After being cautioned, you told investigators you were in a short-term relationship with Adele, however, denied any sexual aspects to the relationship. You stated that you were aware she was 15 years old.
17You were taken to the Sale Police Station for interview. You initially maintained that you had not engaged in any sexual activity with Adele, stating you had Googled the legal age of consent in Victoria and were directed to a Victorian Government Website. Later, you admitted to an ongoing sexual relationship with her, disclosing there were approximately eight occasions you and Adele had sexual intercourse in your vehicle. During the interview, you took limited responsibility for your role in the offending, denying the anal penetration, and essentially indicated that 15-year-old Adele was the instigator in the sexual activity. You admitted to using your phone to record her perform oral sex on you, and agreed that you later sent this recording to her before you deleted the recording off your phone. You acknowledged your understanding that the video was child pornography. When prompted to provide a reason for engaging in sexual penetration of a child under the age of 16, you replied 'Cause she asked for it and I was in love with her'.
18You were released from the Sale Police Station and were not remanded in custody at this time. Following resolution discussions in early 2022, your matter ultimately resolved by you formally indicating your intention to enter a plea of guilty to the five charges on 20 May 2022 at a committal mention. Your Counsel advised that you had previously offered to plead guilty in March 2022. You were remanded in custody on this matter at your further plea hearing last week, on 27 April 2023. You have now spent 7 days in custody up to but not including today.
Victim impact
19A Victim Impact Statement was completed by Adele’s grandfather and carer, Ian Thomas on 19 September 2022. It was tendered at your plea hearing and marked as Exhibit 2. Mr Thomas’ statement was read out at your plea hearing on 15 November 2022. In that detailed statement, Mr Thomas referred to the impact of your offending upon Adele, and her relationship with Mr Thomas, as being 'unmeasurable from a trust, embarrassment, guilt and betrayal perspective'. Mr Thomas referred to the significant adverse impacts upon his granddaughter as a result of your offending, for which she has undergone treatment, which is ongoing. According to Mr Thomas, Adele is struggling with feelings of guilt, and she is struggling with her self-esteem and self-worth. According to Mr Thomas, his granddaughter had to leave school for a period and move to Melbourne to live with an aunt for some five months. She has had to withstand various taunts and other critical comments on social media. She has not been able to associate with some friends. Her relationships within the family unit have suffered. She has had to wear jumpers in warm weather to cover up the scars on her back. Mr Thomas also spoke of the adverse consequences for Adele’s younger sisters, who have apparently witnessed Adele’s troubles and the resulting relationship issues within the family. Mr Thomas referred to the trauma to him in having to view and discuss the video which he located on his granddaughter's phone. Both Mr Thomas and his partner continually blame themselves for not protecting their granddaughter and for letting this happen under their watch. Clearly Mr Thomas understandably feels strongly with regards to the impact of your offending upon his granddaughter and the family. His heartfelt statement eloquently explains the adverse consequences of your offending and highlights the often far-reaching and long-lasting impacts of offending upon victims and their families.
20Victim Impact Statements are an important means through which victims of crime can meaningfully participate in the sentencing process, by informing the Court of the often far-reaching and significant adverse consequences of the offending on them. In formulating an appropriate sentence in your case, in addition to all of the relevant sentencing factors and principles, I have taken into consideration the impact of your offending on your victim, together with the flow-on effects upon her family.
Nature and gravity of your offending
21The gravity of your offending is reflected in the relevant maximum statutory penalties; 15 years' imprisonment for the sexual penetration charges and 10 years' imprisonment for the produce child abuse material charge.
22Your offending involved serious sexual misconduct with a 15-year-old girl, a child in the eyes of the law. The fact that Adele may have been a willing participant in the sexual activity in no way excuses your offending. As has been stated in the often-cited Court of Appeal decision of Clarkson v R; EJA v R,[6] the sexual penetration offences will be committed, even where the child freely agrees to the act of sexual penetration. The legislative prohibition is absolute – while an adult can consent to being sexually penetrated, a child under 16 cannot. This absolute prohibition on sexual activity with a child serves to protect children from the harms caused by premature sexual activity and, to that end, to protect them from their own immaturity. Furthermore, in order to advance this protective purpose, the prohibition is designed to deter those who might contemplate sexual activity with a person under 16.[7]
[6]Clarkson v R; EJA v R (2011) 32 VR 361.
[7]Ibid 26.
23As has recently been articulated in the Court of Appeal decision of Roberts:[8]
'The offence of sexual penetration of a child under the age of 16 years covers a truly vast range of sexual activity. The common characteristic is that in every case the victim is a child whose welfare is sought to be protected by this and similar age-related offences. Every example of this offending is serious. Some, however, are more serious than others — the 50 or 60 year old predator engaging with a 12 or 13 year old, having groomed and coerced the victim, is at one end of the spectrum. Two teenagers straddling the age limit and sexually experimenting is at the other….'
[8]Roberts v R [2023] VSCA 92,17.
24Acknowledging, therefore, that this type of offending falls within a considerable spectrum of seriousness, in sentencing you I am required to place your offending within that spectrum.
25There was a considerable age disparity between you and your victim. At the time of the first instance of sexual penetration with Adele, you were one day past your 24th birthday. On the last occasion of sexual activity, you were 24 years and 5 months old. On the first occasion of sexual activity, Adele was 15 years and 4 months old, and on the last occasion she was 15 years and 9 months of age. The age discrepancy of nine years must be seen as significant, although, as stated in the recent decision of Roberts,[9] this age discrepancy is not as great as is often seen in this type of offence.
[9]Ibid.
26Aged between 15 years and 4 months and 15 years and 9 months, your victim was towards the top of the age range to which the offence captured by Charges 1 to 4 on the Indictment applies. This offence captures ages from 12 years to 15.99 years. Again, as articulated in Roberts, axiomatically all other things being equal, the younger the victim, the greater the objective gravity of the offending.
27Charges 1 to 3 on the Indictment are rolled-up charges. Charge 1 encompasses five instances of penile/oral penetration, Charge 2 encompasses seven instances of penile/vaginal penetration and Charge 3 encompasses three instances of tongue/vaginal penetration. Charge 4 encompasses a single instance of penile/anal penetration. In total, 16 instances of sexual penetration of a child under 16 occurred. This was far from isolated offending, and the repetition and number of instances of sexual penetration highlights the objective gravity of your criminal conduct. Your offending commenced on 28 March 2021 and concluded, it seems, on 14 September 2021, notwithstanding the between-dates charges on the Indictment. As conceded by Ms Caruso, who appeared on behalf of the director at your plea hearing, it is not accurate to state that, in accordance with those between-dates charges, your offending spanned a period of seven months. Rather, the first instance of sexual activity occurred on 28 March 2021, after which there was reduced contact between you and Adele for a period of two to three months before you began dating in mid-July and the sexual activity resumed on or about 1 August 2021. Thereafter, between 1 August and 14 September 2021, there were multiple instances of sexual penetration. The time period within which you engaged in what was essentially a sexual relationship with your 15-year-old victim, is also relevant to the objective gravity of your offending.
28As is clear from the Summary of Prosecution Opening, you knew Adele was 15 years of age once you met her. Furthermore, you were reminded clearly of the illegality of your conduct when your housemate informed you of this illegality on the first occasion of sexual activity between you and Adele. Your dismissive response, coupled with your knowledge with regards to Adele’s age and the illegality involved, accentuates the objective gravity of your offending, and your culpability for it.
29In terms of the nature of the sexual activity itself, all acts and types of sexual penetration are of course considered to represent serious misconduct when your victim is a child. You wore a condom with regards to the penile/vaginal penetrations, thereby removing any risk of infection or pregnancy, and this aspect represents an absence of an aggravating feature sometimes seen in this type of offending. On one of the occasions, in mid-September 2021, when you picked Adele up and drove her to your house, according to the Summary of Prosecution Opening, upon arrival at your house, you pinned Adele against the door before throwing her on the couch, inserting your fingers into her vagina, which caused her pain and resulted in her telling you to slow down before you sexually penetrated her vagina with your penis. While it is not suggested that this conduct occurred against Adele’s will, it must be seen, in my view, as very adult behaviour on your part, accentuating the objective gravity of this instance of sexual penetration. Furthermore, on the topic of adult behaviour, on one instance of sexual penetration between 26 August 2021 and early September 2021, the sexual activity engaged in by you was accompanied by concerning activity involving the use of a knife. Of course, you have not been charged with regards to the conduct involving the knife or the consequences of your use of the knife, and in sentencing you, I have taken care not to separately punish you in this regard. However, I find that your use of the knife to make a superficial cut down the sternum of Adele, and then essentially carve your initials into the skin on her back, to be very concerning conduct. At the very least, it accentuates the very adult nature of the circumstances surrounding the sexual activity on this occasion. As evidenced by the Victim Impact Statement from Adele’s grandfather, the existence of your initials on Adele’s back have had adverse consequences for her with regards to self-esteem and having to make modifications with regards to clothing. Given the protective nature of the legislative prohibition with regards to sexual activity with children under the age of 16, your conduct with regards to the knife is relevant as a surrounding circumstance to your offending and its impact on your victim and, in my view therefore, accentuates the objective gravity of your offending and your culpability for it.
30There is no suggestion in this case that you sought out or targeted your victim. I accept that you met Adele when she commenced working at your workplace. You were not in a position of trust or authority with regards to Adele. I also accept, as you have stated to police, that you had feelings for Adele, that from July 2021 you commenced a relationship with her, and that you felt that you loved her. This, of course, in no way diminishes the gravity of your sexual misconduct or the adverse impacts upon Adele and her family. However, I am satisfied that your offending was not a consequence of any breach of trust, nor was it driven by sexual deviance, or concerning sexual psychopathology, or that you engaged in grooming or other concerning conduct sometimes seen in these cases.
31The prosecution submitted, with regards to Charges 1 to 4 on the Indictment, that the offending fell at the midrange level of objective gravity for this type of offending. In contrast, your counsel submitted that this offending fell towards the lower end of the spectrum. In my view, having considered all of the circumstances of your offending with regards to Charges 1-4, while there are clearly some concerning aspects to it, your offending falls somewhat below a midrange example of this type of offending.
32With regards to Charge 5 on the indictment, I accept that this represents a relatively low-level example of this type of offending. The offending is limited to a single day, and a single video recording which you made whilst receiving oral sex from your victim. You then distributed it to her before deleting it from your phone. I accept that there is no suggestion in this case of a broader public distribution or use in an abusive way against your victim, as is sometimes the case. As referenced by the prosecution in written submissions, the focus of the charges and your criminality relates to the sexual penetration conduct, as opposed to Charge 5.[10]
[10]Prosecution Sentencing Submissions dated 15 November 2022 at paragraph [18].
Personal circumstances
33You are now 26 years of age. As I have stated, you were 24 at the time of your offending. To your credit, you have no prior or subsequent convictions and accordingly you fall to be sentenced as a young man with previous good character.
34Many of the details with regards to your personal history were contained in the helpful report of psychologist, Patrick Newton, dated 26 October 2022, Exhibit 'B' at your plea hearing. You are the second of three children in your family. You grew up in Maffra until 2011, when your family moved to Newry. Your father works as a truck driver and your mother is an emergency department nurse.
35Your education was undertaken in the Maffra area. You have described, to Mr Newton, feeling like an outsider during your upbringing, and that you experienced a degree of bullying and ostracism throughout your schooling. You found yourself on the periphery of social groups. You have referred to suffering recurrent bouts of depression and anxiety since your teenage years. Your emotional health apparently deteriorated markedly from mid-secondary school. From about the age of 16 you have made a number of attempts of self-harm and have engaged in self-cutting behaviours.
36You apparently continued to attend school despite these challenges and completed your VCE, obtaining a creditable result. After completing your schooling, you commenced tertiary studies in the area of nursing at Federation University, advancing to your second year in 2022, before withdrawing from your studies in the context of your current legal predicament. In the context of your studies, you have apparently worked in several aged care settings as a personal care attendant and nursing assistant, reportedly having clinical responsibilities in excess of those typical of a person at your level. Until late last year you were working in this capacity, before ending your employment in the context of the sentencing hearing in relation to this matter.
37You described to psychologist, Mr Newton, a significant family history of depression, noting that your mother had experienced severe post-natal depression following your birth and had required psychiatric assistance. You also referred to both of your siblings being under active treatment with regards to depression. Your own history of mental instability commenced in your childhood, with your social difficulties and feelings of alienation from others. These grew more intense as you grew into adolescence, in the context of difficulties establishing social connection at school, and especially once the bullying and harassment escalated at secondary school. Your response to your emotional turmoil was apparently severe and encompassed repeated acts of self-harm, as well as prominent suicidal ideation. You have reported making at least four serious attempts on your life in 2013, which included efforts to hang yourself, jumping from heights and cutting yourself with lethal intent. You have told Mr Newton that you have repeatedly cut yourself as a means of alleviating tension and providing an external focus for your internal distress. You have reported only receiving limited professional assistance to address your mental health issues prior to your arrest on these matters. Your GP subsequently prescribed the antidepressant, Lexapro, which you have taken throughout 2022 and 2023.
38You have reported to Mr Newton that your first intimate relationship occurred in the context of meeting a female when you were aged 18, and the relationship progressed to become sexual when you were aged 19. You remained together with this woman until 2020. You have referred to your only other relationship having been with Adele, the victim in this matter. You told Mr Newton that you had fallen in love with Adele and that you considered her to be your partner. You were frank with Mr Newton in admitting that you had known Adele was underage, but had persisted in a sexual relationship with her despite this knowledge.
39Upon seeing Mr Newton for the first time on 23 May 2022, you commenced private psychological treatment with psychologist, Geoffrey Burrows, of the same practice as Mr Newton, from 23 June 2022. That treatment essentially involved participation in a Sex Offender Treatment Program. Mr Burrows provided a treatment report dated 16 October 2022, Exhibit 'C' at your plea hearing, detailing your progress between June 2022 and October 2022 with regards to this treatment. As at 16 October 2022, you had completed eight privately-funded treatment sessions with Mr Burrows in the CBD area. You initially presented, it seems, as an awkward and immature young man manifesting symptoms of anxiety and depression, and demonstrated little insight into the harmful nature of your actions with regards to Adele. According to Mr Burrows, in that treatment report, your poor understanding of sexual consent and female psychosexual development was identified as contributing to your offending behaviour. You expressed regret for your offending, but demonstrated limited understanding of the destructive impact of your actions and you reported endorsing several offence-supporting cognitions which allowed you to justify your offending behaviour at the time. The treatment, it seems, essentially focused upon a restructure of your offence-supporting cognitions through psychoeducation. As at October 2022, you had begun to develop an improved understanding of the issues underlying your offending behaviour, but had found it difficult to restructure your offence-supporting cognitions and enhance your victim empathy. Mr Burrows concluded, at that time, that you had engaged actively in the treatment program and had begun to develop insight into your offending behaviour and to address the relevant and interpersonal sexual issues, but that you had made slow progress and remained at an early stage of treatment.
40Returning to the psychological report of Mr Newton dated 26 October 2022, having considered the treatment with Mr Burrows between June and October, Mr Newton noted that your insight remained at a formative stage.[11] While your emotional state had improved by October 2022 with the provision of treatment, according to Mr Newton you were still, at that time, manifesting significant depression and anxiety. Mr Newton opined that your symptoms were consistent with a diagnosis of a recurrent major depressive disorder as at October 2022 at a mild level of intensity which, nevertheless, remains a serious mental disorder that requires treatment. According to Mr Newton:
'It is likely that [you were] labouring under the effects of depression at the time of [your] offending conduct. This would have had a range of detrimental effects upon [your] cognitive clarity, decision making and judgment ….'[12]
[11]Psychological report of Mr Patrick Newton dated 26 October 2022 at paragraph [41].
[12]Ibid page 16.
41Mr Newton also referred to you having a number of problematic personality issues, including difficulties establishing and maintaining secure attachments and fluctuating self-esteem, and a tendency to engage in self-harming behaviour, acting out at times of stress. These were noted by Mr Newton as prominent maladaptive traits and represented prominent features of borderline personality disorder. According to Mr Newton:
'… There is a strong need for specialist treatment to prevent this condition progressing to more serious levels of impairment.'[13]
[13] Ibid.
42Mr Newton referred to your problems regarding your understanding of the reasons regarding the age of consent. According to Mr Newton:
'… [You] abdicated [your] responsibility as the adult in the situation (avowedly out of [your] desire to please her) and downplayed the negative effects of sexual contact between adults and underage individuals….'[14]
[14]Ibid page 17.
43According to Mr Newton your views as at October 2022 were problematic.
'… Even with the benefit of initial treatment with Mr Burrows, they have not materially shifted over the time since our initial consultation….'[15]
[15]Ibid.
44
Significantly, after conducting a risk assessment using the well-known risk assessment tools, Mr Newton did not find any evidence of underlying sexual deviance, and concluded that there is no indication to suggest that you suffer from a paraphilic disorder of any type and, for the sake of clarity, that you would not attract a diagnosis of paedophilic disorder.[16] As a result of that risk assessment, Mr Newton confirmed that you represent a moderate risk of sexual recidivism, with the most significant concerns relating to your limited insight into the issues of consent and the damage caused by your offending, the exploitation of the age difference with your victim, your limited benefit from initial treatment and the potential challenges posed to your participation in future treatment by your
self-harming and suicidal behaviour. Mr Newton recommended further
offence-specific treatment targeting these risk factors.
[16]Ibid.
45Mr Newton provided an addendum report dated 30 January 2023, Exhibit 'D' at your plea hearing. In that report, Mr Newton expressed various opinions following further contact with you and your parents, and in consideration of your ongoing treatment with Mr Burrows in the intervening period. In that report, Mr Newton opined that, while your depression includes a reactive component with regards to your current legal predicament, it cannot adequately be accounted for through a diagnosis of adjustment disorder. According to Mr Newton, it is clear that your depressive symptoms predate your arrest on these current matters, commencing no later than in adolescence and occurring in the face of identifiable stressors at various times since then. In his addendum report, Mr Newton clarified and amplified his opinions with regards to your depression and its connection to your offending. According to Mr Newton:
'Put simply, depression slows mental processes, makes the exertion of mental effort more difficult and is apt to increase the subjective state of interpersonal "neediness" experienced by those who suffer the condition. Such factors would have been likely to impair [your] capacity to reflect calmly and to exercise appropriate judgment in interpersonal and other matters. In [your] case, these effects are likely to have been rendered more intense by [your] immaturity and the interpersonal problems which [you] had recently suffered.'[17]
[17] Addendum to Psychological Report by Mr Newton dated 30 January 2023 at paragraph [18].
46According to Mr Newton, your depression is likely to have had a range of predictable effects upon your social reasoning, general problem solving and cognitive efficiency. However, Mr Newton concluded that your depression was not the primary cause of your offending, and that other facts, such as your distorted understanding of the sexual development of young people, your limited understanding of consent and your failure to appreciate the harm caused by your sexual contact with Adele, played a more important role.[18]
[18]Ibid page 5.
47Mr Burrows provided a follow-up report dated 23 April 2023, Exhibit 'I' at your plea hearing, with regards to your ongoing participation in the Sex Offender Treatment Program. According to Mr Burrows, in that report, in total, you have participated in sixteen treatment sessions between 20 June 2022 and 23 April 2023. You have, according to Mr Burrows, continued to engage in a slow, but productive, manner. You have made some minor additional progress in relation to developing insight into your offending behaviour and improving your understanding of sexual consent. You have also made some minor progress in improving your coping skills and your social skills, and developing a more comprehensive relapse prevention plan. Mr Burrows concludes:
'In summary, Mr [McMasters] has engaged actively in the SOTP but has made slow and limited progress. To his credit he has continued to attend and engage earnestly. It should be noted that his limited progress is best explained by his emotional and general immaturity and is not from a lack of effort on his part. He continues to remain at an early stage of the SOTP and would benefit from further engagement to reduce his risk of reoffending and to manage his negative emotions more effectively ….'
48Your counsel submitted that your psychological profile and, in particular, your depressive disorder, reduced your moral culpability for your offending pursuant to Verdins' Principle 1. While the prosecution took issue with this submission, there was no request to cross-examine Mr Newton, upon whose opinions the Defence submissions were essentially based. In those circumstances, and noting the significant experience and expertise of Mr Newton, I proceed to sentence you on the basis that, at the time of your offending, you were suffering from the Depressive Disorder, and that it impacted upon your offending in the manner described by Mr Newton. However, as indicated by Mr Newton, your depression was not the primary cause of your offending - your cognitive distortions, it seems, were. In those circumstances, in my view, only a moderate application of Verdins' Principle 1 is appropriate, resulting in a modest reduction only in your moral culpability for your offending. This is so, in my view, in particular, having regard to the extended time period of your offending, and the repeated actions on your part within that period. Notwithstanding the impacts of depression upon your mental functioning, you must, in my view, have known of the gravity of your misconduct, and your level of culpability therefore remains significant for this offending.
49Your counsel also submitted, on the basis of your psychological profile, that Verdins' Principles 2, 3 and 4 were enlivened. Ultimately, I have concluded, notwithstanding your psychological profile that, given the nature of your offending, general deterrence remains a significant sentencing purpose in your case. Likewise, notwithstanding your lack of prior criminal history or subsequent criminality, your problematic insight and slow progress, notwithstanding intensive treatment for an extended period of time, reinforces the need for any penalty to reflect the sentencing purpose of specific deterrence.
Applicable sentencing factors
50The Sentencing Act 1991 requires me to have regard to various factors and principles when formulating an appropriate sentence in your case. I have already referred to the relevant maximum penalties, the gravity of your offending and your level of culpability for it, together with your previous character.
51As I earlier indicated, your matter resolved by way of a plea of guilty indicated at a committal mention on 20 May 2022. A sentencing discount is warranted by virtue of your plea of guilty, entered very early in the proceedings. As a result of your early plea of guilty, your victim has been spared cross-examination and the community has been spared the cost and delays associated with contested proceedings. Your plea of guilty in these circumstances reflects your willingness to facilitate the course of justice and demonstrates your acceptance of responsibility. Significantly, you entered your plea in the midst of the COVID‑19 pandemic. Given the current unprecedented challenges to the administration of criminal justice in this State, due to the impacts of COVID‑19, and the consequential delays to criminal trials, your plea of guilty has a significantly enhanced utilitarian benefit, having regard to the significant backlog of cases which still exists in this court. A significant sentencing discount is therefore warranted.
52Your counsel submitted that a further sentencing discount was warranted by virtue of your remorse, though it was conceded that the issues of remorse and insight are somewhat complex in light of the psychological reports. I accept that your plea of guilty in and of itself is reflective of a degree of remorse. You cooperated with investigating authorities and provided a fulsome record of interview. Clearly, although your insight is improving, it is still at a problematic level, which precludes a positive finding that you have true insight into the nature and gravity of your offending and its impact upon your victim.
53A number of character references were tendered on your behalf at your plea hearing and marked Exhibit 'E'. Notwithstanding the problematic psychological opinions in this case, at least one of those letters referred to your remorse with regards to your offending. In the circumstances, I am prepared to make a modest mitigatory allowance on the issue of remorse.
54You were 24 years of age at the time of your offending and you are now 26 years of age. As I have indicated, you have an absence of prior or subsequent criminal convictions. Your lack of criminal history stands to your credit, and you fall to be sentenced as a relatively youthful offender. In these circumstances there is a need to reflect the important sentencing purpose of facilitating your rehabilitation.
55You are clearly loved and supported by your family, who have been ever present at your hearings before me. The authors of the character references speak very highly of you. You clearly have a degree of aptitude, and interest in the caring professions, commencing a nursing degree, and obtaining employment in the area of aged care in recent times. Even as you awaited finalisation of this case, I was informed that rather than sitting idle, you had managed to obtain a casual job building wall and roof trusses for a company in Heyfield. Notwithstanding your somewhat limited progress in offence specific treatment, the fact that you have been willing to engage in what has no doubt been confronting offence-specific treatment over a protracted period of time whilst you await finalisation of your case very much stands to your credit. I accept that you have been committed to this process, although your progress has been slow. Given your relative youth and lack of criminal history, together with your preparedness to engage in such intensive treatment, in addition to these other matters to which I have just referred, I am satisfied that your rehabilitative prospects are reasonable, though heavily dependent in my view upon specialist interventions with regards to your mental health and ongoing cognitive distortions with regards to the underpinnings of your offending.
56I accept that there has been a degree of extra curial punishment in your case. You have lost the chance of your career in nursing which you were partway through studying. You have had to terminate your employment in aged care given your legal predicament. You have understandably experienced shame and loss of reputation as a consequence of your involvement in this offending, and a mitigatory allowance is warranted.
57I accept also that the delay associated with the finalisation of your case has no doubt impacted upon you heavily. As I indicated you resolved this matter at the committal mention stage in May 2022. For the past 12 months I accept that you have been preparing yourself for the possibility of imprisonment each time you have appeared in court and that ongoing court process has been a daunting and extremely intimidating scenario for you given your psychological makeup and previous unblemished record. Whilst in my view the delay in this case cannot be described as inordinate, in all the circumstances a mitigatory allowance is warranted.
58According to Mr Newton, given your psychological makeup, you would be likely to experience imprisonment as having a more onerous impact upon your mental state and psychological functioning than would prisoners who did not suffer from your pre-existing vulnerabilities (including but not limited to your depression). Furthermore, according to Mr Newton you present with relatively significant treatment needs which are unlikely to be adequately addressed in a custodial environment. Mr Newton anticipates that such deterioration would be significantly more intense than would typically be the case for prisoners who did not present with your particular challenges.[19] According to Mr Newton you would require a longer than usual period to adjust to the custodial environment, and you would be prone to experience more intense emotional upheaval and there would be a higher than usual chance of negative interactions with other prisoners, all of which would make you vulnerable within the custodial settings. In those circumstances, I am prepared to make a further mitigatory allowance based upon Verdins principles 5 and 6, given the custodial sentence that I am about to impose. Furthermore, whilst to some degree the situation seems to have improved, the sad reality is that COVID‑19 is still a feature of our daily living, and the custodial setting has not been immune. To varying degrees given the unpredictable nature of the pandemic, I accept that serving time in prison has become harder since the arrival of COVID‑19. There have been, and at times will continue to be, restrictions with regards to freedom of movement, access to visits, and access to activities, employment, and vocational and therapeutic activities. Furthermore, all prisoners must live with the ongoing anxieties associated with the incursion of COVID‑19 into the custodial setting, given its compromised demographic. A further mitigatory allowance is therefore warranted with regards to the hardship of custody in your case.
[19]Ibid at paragraphs [24] and [25].
Legislative requirements
59Charges 1 to 4 on the indictment, sexual penetration of a child under 16, are standard sentence offences. As these offences were committed after 1 February 2018, the standard sentence scheme contained in the Sentencing Act 1991 applies to the sentence I am to impose on each of these charges. The applicable standard sentence for this offence is 6 years' imprisonment.
60Pursuant to s5A(b) of the Sentencing Act 1991, this period is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.
61Pursuant to the standard sentencing scheme set out in ss5A and 5B of the Sentencing Act 1991, I am required to take the standard sentence into account as one of the factors relevant to sentencing.
62The standard sentence is a legislative guidepost only and does not affect the established instinctive synthesis approach to sentencing.[20] With regards to the task of sentencing in relation to a standard sentence, which is designed to represent a mid-range example of that relevant offence, the plurality in the Court of Appeal decision of McPherson v The Queen,[21] stated with regard to a mid-range example of an offence that:
'… it is an intangible concept, and judges ought to be wary of affording it too much weight in the sentencing exercise. In particular, as this Court has said, judges must avoid engaging in "two-stage" sentencing, whereby a vague, essentially intangible concept is used as a starting point from whence the sentence is adjusted upwards or downwards as the case dictates. It is a factor in the application of the intuitive synthesis, in the same way that the maximum sentence is. No more, no less.'
[20]Brown v R (2019) 59 VR 462, 4.
[21]McPherson v The Queen [2021] VSCA 53, 31.
63Pursuant to s5B(2)(b) of the Sentencing Act 1991, I must only have regard to sentences previously imposed for the offence as a standard sentence offence when considering current sentencing practices for the offence of sexual penetration of a child under 16, imposed under the standard sentence scheme. In that regard, I have been referred to a number of decisions, in particular DPP v Spottiswood[22] and the Court of Appeal decision published last week, of Roberts. In considering these and the other sentencing decisions, I am cognisant of the fact that sentences of other courts are not binding precedents but are merely historical statements of what has happened in the past, and current sentencing practices represent just one of the relevant sentencing factors to be considered.[23]
[22]DPP v Spottiswood [2021] VSCA 146.
[23]Director of Public Prosecutions (DPP) v Dalgleish (Pseudonym) (2017) 262 CLR 428, 83.
64Turning firstly to the decision of Spottiswood, in my view there are a number of aspects of disparity with regards to the circumstances of this case. In that case the victim was only 14 years of age, the age disparity was greater, the offending was facilitated through the offender accessing online applications predominantly used by teenagers, the offender engaged in manipulative conduct, for example lying about his age, there was a significant quantity of child abuse material found on various devices, the offender was found to have a deviant pattern of sexual arousal, and to have engaged in predatory and manipulative behaviour, the offender was older at the age of sentencing, his risk of reoffending was described as moderate to high, and there was no allowance made with regards to the cases of Verdins, Worboyes, or COVID-19.
65Turning to the decision of Roberts, as conceded by the defence in this matter, there are some similarities with aspects of the factual circumstances. In many respects, the circumstances of the offending were similar, and the offender in that case faced a number of rolled-up charges. The age disparity was similar, and the offender in that case also had no prior convictions. However, significantly, the sexual activity was unprotected in the case of Roberts, resulting in exposure to the risk of infection and significantly the risk of pregnancy which materialised in that case. The pregnancy was referred to by the Court of Appeal as a 'seriously aggravating factor'. There was also no Verdins principle 1 applicability in the case of Roberts. However, the offending period in Roberts was more contained, and limited to a period of 11 days.
66In formulating an appropriate sentence in your case with regard to the sexual penetration of a child under 16 charges, I have had regard to the standard sentencing scheme, and previous sentences for this offence imposed pursuant to that scheme, acknowledging as I must that each case is fact specific, that these matters represent just one of the many applicable sentencing factors in your case, and that ultimately I have an overarching duty to impose a just and appropriate sentence in accordance with orthodox sentencing principles.
67The individual sentences I am about to impose on Charges 1 to 4 on the indictment fall below the standard sentence. Having identified and considered the relevant factors in assessing the sentence, including the standard sentence scheme, the objective seriousness of your offending, and matters available in mitigation, these are the sentences I have determined to be appropriate.
68Pursuant to the relevant provisions of the Sentencing Act 1991, you fall to be sentenced as a serious sexual offender with regard to Charges 3 to 5 on the indictment, given that sentences of imprisonment will be imposed on Charges 1 and 2. Pursuant to s6D of the Sentencing Act 1991, I must regard the protection of the community from you as the principle purpose for which the sentence is imposed, and I may, in order to achieve that purpose, impose a disproportionate sentence, although the prosecution did not indicate that such a sentence was being sought in your case. In my view, meaningful rehabilitation can represent an effective means through which the community can be protected from you. Pursuant to s6E of the Sentencing Act 1991, there is a presumption of cumulation with regard to sentences imposed under the serious sexual offender provisions. Given the nature and breadth of your offending, and the separate criminality represented by each of the charges on the indictment, there is in my view a need for a degree of cumulation in any event, subject as always to the overarching principle of totality.
Parties' submissions
69Whilst acknowledging the mitigating factors in your case, the prosecution submitted that, given the objective aggravating factors with regards to your offending, the only appropriate sentence is one of imprisonment that is structured by a head sentence and a non-parole period. According to the prosecution the offending is far too serious for a Community Correction Order alone or in combination with a sentence of imprisonment. In contrast, your counsel submitted that a Community Correction Order would be appropriate, either on its own or in combination with a sentence of imprisonment, given the mitigatory factors in your case. In that regard, and whilst in no way indicating a predetermined outcome, I had you assessed with regards to your suitability for a Community Correction Order, and I note that you were found suitable should such an order be imposed.
Sentence
70The offending in which you engaged must be seen in my view as extremely serious. You engaged in protracted sexual offending involving sexual penetration of a child on multiple occasions, over a period of time. There were, in my view, some concerning aspects to your offending behaviour, the details of which I have outlined. In sentencing you, I must denounce your conduct, highlight to the community the absolute prohibition on sexual activity with children and the substantial punitive consequences that await individuals who breach that prohibition. Further, I must seek to deter you from again contemplating such serious criminality and I must appropriately protect the community from such serious offending. Particularly given your absence of prior criminality and your relative youth, and your preparedness to commence what will clearly be a protracted period of treatment, any sentence I impose must facilitate your rehabilitation, and ultimately I must arrive at a sentence which reflects a just punishment in all the circumstances.
71Having carefully considered all of the relevant matters, I have concluded that a Community Correction Order is not appropriate in your case, either alone or in combination with a sentence of imprisonment. The maximum sentence of imprisonment that I could impose in combination with a Community Correction Order is 12 months. In my view, even with a substantial and punitive Community Correction Order, this would be insufficient to meet the applicable sentencing factors, principles and purposes in your case. Consistent with the parsimony principle, I have concluded that nothing short of a sentence of imprisonment incorporating a head sentence and non‑parole period is appropriate in your case.
72The mitigatory factors will impact upon both the head sentence and non‑parole period. Pursuant to s11A(4) of the Sentencing Act 1991, when fixing a non‑parole period with regards to a standard sentence offence, unless I consider that it is in the interests of justice not to do so, I must fix a non‑parole period of at least 60 per cent of the relevant term in your case.
73Having carefully considered all of the circumstances of your case, and in particular with regard to the mitigatory factors to which I have referred, I have determined that it is in the interests of justice not to fix a non‑parole period of at least 60 per cent of the relevant term in your case. In that regard I note the sentiments expressed by psychologist Patrick Newton in his report dated 26 October 2022 with regard to the merits of imposing a longer than usual period of supervision in the community given your particular treatment needs and psychological makeup. It is my view that you will require significant supervision in the community as part of your sentence in order to facilitate your rehabilitation and best protect the community, and accordingly it is my intention to incorporate a significant parole eligibility component in the sentence I am about to impose.
74On Charge 1 on the indictment, you are convicted and sentenced to 2 years' imprisonment.
75On Charge 2 on the indictment, you are convicted and sentenced to 2 years and 6 months' imprisonment. This is the base sentence.
76On Charge 3 on the indictment, you are convicted and sentenced to 2 years and 3 months' imprisonment.
77On Charge 4 on the indictment, you are convicted and sentenced to 2 years' imprisonment.
78On Charge 5 on the indictment, you are convicted and sentenced to 9 months' imprisonment.
79I direct that 2 months on Charge 1, 4 months on Charge 3, 4 months on Charge 4, and 1 month on Charge 5, be served cumulatively upon each other and upon the sentence imposed with regard to Charge 2, making a total effective sentence of 3 years and 5 months' imprisonment.
80I order that you serve a period of 23 months before becoming eligible for parole.
81Pursuant to s18(4) of the Sentencing Act 1991, I declare that a period of 7 days has been served by way of pre-sentence detention, and I order this period be deducted administratively from the sentence.
82Pursuant to s6F(1) of the Sentencing Act 1991, I declare that you have been sentenced as a serious sexual offender with regards to Charges 3, 4 and 5 on the indictment, and I order that this fact be entered into the records of the court.
83Pursuant to the relevant provisions of the Sex Offenders Registration Act 2004, Charges 1 to 4 on the indictment being Class 1 offences under that Act, and Charge 5 being a Class 2 offence, you are a registrable offender and the reporting period pursuant to that Act is life.
84Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you pleaded not guilty but been found guilty with regards to these offences, I would have imposed a total effective sentence of 4 years and 8 months' imprisonment with a non‑parole period of 3 years and 4 months' imprisonment.
85Finally, I will make the forfeiture order sought by the prosecution in this case.
86Mr Gardner, that order is not opposed, I take it?
87MR GARDNER: I just do not have that order in front of me, Your Honour.
88HIS HONOUR: I will have a copy of it handed down to you.
89MR GARDNER: Yes, thank you, Your Honour. I should just peruse that.
90HIS HONOUR: If you need to get instructions, by all means you can approach.
91MR GARDNER: No, Your Honour. I don't need instructions. I already have those instructions.
92HIS HONOUR: Yes.
93MR GARDNER: It is not opposed.
94HIS HONOUR: Yes, that forfeiture order will be made; that order not being opposed by Mr McMasters.
95Yes, thanks, Mr McMasters, you can take a seat for a moment.
96Mr Gardner, any ambiguities with regard to the sentence imposed, or have I missed anything?
97MR GARDNER: Nothing that leaps out at me, Your Honour, I can say.
98HIS HONOUR: Yes.
99MR GARDNER: Can I just clarify, I did check that Class 2, the Charge 5, and it is my view it is a Class 2.
100HIS HONOUR: Yes. Yes, thanks.
101MR PICKERING: Yes, I agree, Your Honour. Could I only ask if I could just confirm - because my typing is not as fast as it could be - in terms of the cumulation, am I right that it's two months on Charge 1, four months on Charge 3 - - -
102HIS HONOUR: Yes.
103MR PICKERING: - - - four months on Charge 4 and one month on Charge 5 - - -
104HIS HONOUR: Correct.
105MR PICKERING: - - - cumulative on Charge 2.
106HIS HONOUR: Correct.
107MR PICKERING: Thank you, Your Honour.
108MR GARDNER: May it please the court.
109HIS HONOUR: Adjourn the court.
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