Director of Public Prosecutions v Meehan (a pseudonym)
[2019] VCC 1300
•16 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| CHARLES MEEHAN (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 August 2019 | |
DATE OF SENTENCE: | 16 August 2019 | |
CASE MAY BE CITED AS: | DPP v Meehan (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1300 | |
REASONS FOR SENTENCE
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Pseudonym used to protect the identity of the complainant
Subject: Criminal law - sentence
Catchwords: Pleaded guilty to 1 charge of sexual penetration of a child under 16 – oral sex - offence committed 14 years ago – Offender was 18 – complainant 5 years – family connection – reported in 2016 – complainant not called at committal – complainant vulnerable – breach of trust - offender has no criminal record – remorseful – would have been granted considerable leniency as a young offender if dealt with at the time - OPP submitted wholly suspended sentence appropriate – CCO included Sex Offender Program.
Cases Cited: Boulton v R [2014] VSCA 342
Sentence: 3 year Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T. Bourbon | OPP |
| For the Accused | Mr J. Fitzgerald | VLA |
1 HER HONOUR: Charles Meehan[1], you have pleaded guilty to one charge of sexual penetration of a child under the age of 16. This occurred between 17 October and 31 December 2005, when you were aged 18. The child complainant concerned was five years old. His uncle was then in a relationship with your mother.
[1] A pseudonym.
2 The uncle and your mother had two children together and you were living with that family at the time of the offending in Clayton South. The complainant’s parents had separated a year or so earlier and his father had re-partnered, living in Western Australia. The arrangement was that the complainant would spend every second Christmas with his mother in Melbourne.
3 Between 17 October and 31 December 2005, the child flew to Melbourne to spend Christmas with his mother. He was taken to visit his uncle in Clayton South. On one such visit you came out of your bedroom into the lounge room where he was and you asked him to come over to you. He followed you into your room and sat on your bed. You pushed a television unit across the door, blocking it.
4 You got onto the bed with your pants down and told the complainant to put your penis into his mouth. He took hold of your penis and put it into his mouth. He asked you if he was doing it right and you told him to move down and get a better position to suck your penis. The complainant did that, trying to please you, and eventually you ejaculated into his mouth. You then got up, pulled up your pants and told him to stay where he was. You left the room briefly and the complainant went into the lounge room. You called him back to the bedroom and told him, ‘Make sure you don’t tell anyone’.
5 In around 2016, the complainant told a friend about what you made him do. About a year later, he told his girlfriend that he had been molested as a child. In April 2018, at school in Year 12, he was in class watching a movie in which a teenage boy recalled being sexually abused as a young child. He began crying and his teacher spoke to him after the class. He pointed to the word ‘molestation’ on a hand-out. The teacher, who made a note of this conversation, recommended that he should talk to someone about it.
6 A few days later, his father and stepmother became concerned about him, and in response to some general questions about what was going on, he told them that he had been molested as a child by you. His father also told his mother by telephone, and she informed the police. You were interviewed in June 2018 and admitted that you had asked the complainant to suck your penis, but he had refused.
7 You are a single man now, aged 32. You were born in New Zealand. Your father left your mother when he learned she was pregnant and you have had no contact with him. Your mother formed a new relationship and your stepfather was physically abusive towards you and your mother. The family moved to Australia in about 1997 and after some time, your mother and stepfather separated. You then learned that your stepfather was not your biological father.
8 You left school before completing Year 10 and began work in an abattoir. Around this time, your mother commenced a new relationship with the uncle, who came to live with your family. You worked in various other jobs after leaving school and completed an apprenticeship as a spray painter. Later, you worked for many years as a forklift driver at Bunnings. Mr Brendan Stratton[2] from Bunnings wrote a letter for the court describing you as a valuable employee whose termination came about as a result of your work performance deteriorating at the time of being charged with this offence.
[2] A pseudonym.
9 Mr Stratton said you told him you had done something in the past that you deeply regretted and, indeed, your fellow workers had noticed depression overtaking you. Your hope is that at the conclusion of this case, you will be free to resume working at Bunnings, where you understand a position will be available for you. You have no criminal convictions and you have never been in any sort of trouble. You do not drink alcohol and have only used cannabis briefly in the past. You are not married, but you have had several long-term intimate relationships.
10 A committal was held, but the complainant was not cross-examined and you pleaded guilty after that. You have acknowledged that the offending was, in your words, a stupid thing you did and you are ashamed of it.
11 The prosecution has conceded that although this offending was serious, it does not rank at the highest end of that range and that specific deterrence has little or no role to play, leaving only a punitive role for the sentence, apart from the important focus of general deterrence.
12 Although no victim impact statement has been provided, it is apparent from the circumstances of the disclosure by the complainant that the offending had a profound effect upon him. He was a very young child at the time and his recollection of the event was prompted by the experience of watching a film in class as a teenager. Although he made two disclosures over the years, the matter was not dealt with until his parents realised something was wrong following the partial disclosure to the teacher.
13 The complainant was vulnerable, not only as a young child, but also as a child away from his home at the time and very likely in a position of admiring you as an older boy or young man. To that extent, your behaviour represented a breach of trust. It was serious offending of a type which calls for a sentence reflecting the need for general deterrence and denunciation by the court. This is because sexual offending against children is particularly obnoxious and ignites the contempt of the community for such behaviour. It involves the exploitation of a young and vulnerable person and the presumption is that the child will be harmed by the experience.
14 In this case, the circumstances of the disclosure indicate that harm to the complainant did, in fact, result. The fact of ejaculation into the child’s mouth is an aggravating factor, in addition to his very young age, and although no force or threats or coercion was used, the child would likely have perceived that the blocking of the door with a piece of furniture meant something untoward and possibly frightening was happening.
15 In this particular case, the need for specific deterrence is modified considerably by the passage of time, during which you have lived a productive life without any further offending and you have good prospects for rehabilitation. Indeed, it would seem that you have demonstrated the achievement of rehabilitation and that this is not any cause for concern. The need for protection of the community is not the focus of your rehabilitation and need not play a role in sentencing you.
16 That said, there remains the need for a punitive sentence, consistent with the need for general deterrence and denunciation by the court. The chief mitigating factor is the achievement of your rehabilitation that I’ve just mentioned. For 14 years since the offending you have been without blemish a contributing member of society.
17 At the time, at the age of 18, you had only just reached adulthood coming from a childhood featuring indications of at least some likely developmental dysfunction, through the abuse meted out by your stepfather and your being told eventually that he was not your real father. You have been unable to explain why you did what you did, and while it is only speculation to assume that this past dysfunction had anything to do with it, no other explanation can be offered by your background and your demonstrated personal attributes.
18 Your youth at the time is a further important aspect of the sentencing factors to be taken into account. Your moral culpability must be weighed in light of your age then, in that it would have had an impact upon your ability to judge your actions and make appropriate decisions. If you had been dealt with at the time, you would have been granted considerable leniency as a young offender, with your rehabilitation being given priority in sentencing you. That would have been the case even though you would not by then have been able to demonstrate fully your capacity for rehabilitation, as you are able now.
19 When first confronted with the offending, you made some admissions to police in the record of interview, but denied the offending itself. Later, after a committal was held, at which, I think I’ve already said, the complainant was not cross-examined, you pleaded guilty. This, submitted the prosecution, was a late plea and did not represent remorse, but entitled you only to a discount on your sentence for the utilitarian benefit of the plea in having avoided a trial.
20 However, that utilitarian benefit is high, being the avoidance of a trial involving a historic sexual offence against a child. The prosecution’s submission included the proposition that your remorse was not true remorse because of your initial reluctance to tell the truth. Certainly, there are often earlier pleas of guilty and cases of immediate and full admission of guilt, but your remorse is also indicated by your explanation for your deterioration at work given to Mr Stratton and relayed to the court by him and by your statement to police that the matter had been on your conscience for years. That alone indicates remorse.
21 You will be given the benefit that your particular circumstances deserve, which is only slightly less than the full benefit you might otherwise have attracted if your plea and full admissions indicating remorse had been earlier. The weight on your conscience also indicates that delay has had some impact upon you, and that is a matter I take into account.
22 The ultimate submission of Mr Fitzgerald, who appeared for you, was for a non-custodial sentence in the form of a Community Correction Order. The prosecution’s submission was for a custodial sentence which did not necessarily have to be served immediately. It was noted that in 2005, a wholly or partly suspended sentence was available.
23 In this case, I have concluded that a custodial sentence to be served immediately is not warranted, and for that reason I arranged for you to be assessed as to your suitability for a Community Correction Order. I shall explain why, after very careful consideration, that is the preferred option.
24 Certainly, it is true that a suspended sentence of imprisonment meets the requirement for general deterrence and denunciation, partly because it is accepted as a sentence of imprisonment, and therefore ranks higher in the sentencing hierarchy. However, it does not fill the need for any possibly remaining need for rehabilitation through therapeutic means. This, together with the necessary punitive element, can be met by a Community Correction Order, which was recognised by the court in the case of Boulton[3].
Boulton v R [2014] VSCA 342[3]
25 While in your case, there is only a minimal risk of breaching a suspending sentence, such a sentence would not provide the means of engaging in a sex offender program, which would usually be warranted in a case like this, regardless of the level of rehabilitation already achieved.
26 A reasonably long Correction Order with obligations which curtail the freedom of an offender to some extent has been accepted by the courts as appropriate, even in some serious cases, as being able to fulfil all sentencing requirements, including general deterrence, and it carries the threat of possibly imprisonment in the event of it being breached. A suspended sentence would not provide any therapeutic intervention, and even a Sex Offenders Program would only be available if the offender’s sentence were partly suspended, providing for incarceration of at least 18 months, as I understand it.
27 Mr Meehan, you have been assessed as suitable for a Community Correction Order, and having carefully considered the sentencing options open to me, I have concluded that that is the appropriate sentence.
28 Would you stand now, please.
29 The order will begin today and a conviction will be recorded. The order will last for three years. You will be under supervision and you must perform 150 hours of unpaid community work. You must also attend the Sex Offenders Program and submit for testing as to the need for mental health treatment for depression. These are the only obligations, apart from remaining free of any offending. Any time you spend on these programs is to be credited against the hours of community work. You must report to the corrections office at Cranbourne, 176 Sladen Street, by 4 pm on 19 August, which is next Monday.
30 If you had pleaded not guilty, I would have sentenced you to 12 months’ imprisonment, together with a Community Correction Order for 12 months.
31 The prosecution seeks an order for a forensic sample of saliva to be obtained and that is not opposed. I make that order and must explain that the police do have the power to use reasonable force if necessary to obtain that sample, but I trust that won't be the case.
32 You will be registered as a sex offender and that means that every year for 15 years, you must report your details to the police.
33 I’ve signed the Sex Offenders Registration document, Mr Fitzgerald, and the Correction Order. Would you like to have a look at that and approach the dock with my associate?
34 MR FITZGERALD: Yes. I’ll do that. Thank you, Your Honour.
35 HER HONOUR: That’s everything. Thank you.
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