Director of Public Prosecutions v Metcalf (a pseudonym)
[2017] VCC 312
•23 March 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VANESSA METCALF (A PSEUDONYM) |
---
| JUDGE: | HER HONOUR JUDGE CAMPTON |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 22 March 2017 |
| DATE OF SENTENCE: | 23 March 2017 |
| CASE MAY BE CITED AS: | DPP v Metcalf (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 312 |
REASONS FOR SENTENCE
---Subject: Indecent acts with a child under 16
Catchwords:
Legislation Cited:
Cases Cited: R vVerdins [2007] VSCA 102
Sentence: 14 months imprisonment wholly suspended---
APPEARANCES: | Counsel | Solicitors |
| For the Office of Public Prosecutions | Ms A. Moran | |
| For the Accused | Ms K. Blair |
Pages 1 - 10
HER HONOUR:
Charges
1Vanessa Metcalf,[1] you have pleaded guilty to three counts of an indecent act with a child under 16. The maximum penalty for this offence is 10 years.
[1] Vanessa Metcalf is a pseudonym.
Circumstances of Offending
2The full details of your offending are contained in the summary of the prosecution opening which will form part of the sentence. The offences were committed against Amy Burton,[2] the complainant, between 1 January 2004 and 28 November 2005, when she was in foster care with your parents. At the time of the offending you were aged between 24 and 26 and Amy was aged between 12 and 14.
[2] Amy Burton is a pseudonym.
3Count 1 relates to an offence which took place when you were watching movies in your room with the complainant, Melissa Crane[3] who was your girlfriend at the time and Brandon Metcalf.[4] You and the complainant were on the bed together and she leant over and kissed you. After this, you told the complainant words to the effect that she could not tell anyone.
[3] Melissa Crane is a pseudonym.
[4] Brendon Metcalf is a pseudonym.
4Count 2 relates to an offence which took place when you and the complainant were in your bed together and you got her to perform oral sex. You were completely naked and the complainant used her tongue to lick your vagina.
5During this period you and the complainant would cuddle and kiss and brush past each other and sit close together in a flirtatious way. You spoke about the age difference between you and that no-one should know about the relationship. The complainant didn't tell anyone about what was happening between you because she thought that she really loved you.
6At some stage, you moved out of your parent's house and into a unit with Ms Crane. You became friends with Alison Reynolds[5] after meeting her on a lesbian chat site. She moved in with you and Ms Crane before moving into her own unit in the same block.
[5] Alison Reynolds is a pseudonym.
7Count 3, relates to an offence which took place when the complainant was staying with Ms Crane in her unit and you were sharing a bed with Alison Reynolds in her unit. The complainant snuck out of the unit she was staying in through the window of the bedroom, of the room you were sharing with Alison. She got into bed and was sitting on top of you when she kissed you.
8On 28 November 2005 Ms Reynolds reported her concerns about the relationship between you and the complainant to her psychologist. The psychologist made a report to DHS which was referred to Victoria Police. As a result of the report the complainant was removed from your parent’s care.
9After she moved you took her for a drive and you told her that she could not say anything about this or about what had happened between the two of you or you would both get into trouble and if it had not been for her mother you would be together.
10On 15 January 2016 the complainant contacted the police to report the allegations and made a formal statement. You were arrested and interviewed on 21 May 2016 and gave a no comment record of interview.
Personal Circumstances
11Your personal circumstances were outlined to the court by your counsel and further details were contained in a psychological report from Gary McMullin. You were born in the United Kingdom and came to Australia with your family when you were around 11 to 12 years. You are one of four children but sadly your siblings are deceased. Most recently, in August 2016, your 24 year old brother Brandon was killed in a motor vehicle accident.
12You attended Oberon High School completing Year 11. After working some time as a cleaner you completed Certificates in Aged Care and Disability Studies. You have also completed courses in Occupational Health and Safety, Food Handling, Information Technology. You now work in an aged care facility as a personal care attendant. However, since you have been charged with these offence you have struggled at work and you currently work one day a week.
13You live with your parents and you have done for many years. In December 2016 your mother was diagnosed with breast cancer and had two malignant tumours removed a week before Christmas. Your mother is also on the waiting list for a hip operation and a hernia and relies on you for support.
14You have been in a relationship with your current partner for some ten years. She lives in Bacchus Marsh and the plan is for you to eventually get a unit together here in Geelong.
Defence Submissions
15In her plea on your behalf your counsel submitted that a non-immediate term of imprisonment was within the range of sentencing options. In making this submission your counsel relied on the following mitigating matters: Your plea of guilty which, although late, avoided the cost and expense of a trial and spared the complainant and witnesses from the need to give evidence. You have no relevant priors, your only prior being for a burglary and going equipped to steal in February 2003 for which you received a “without conviction” adjourned undertaking. There has been no subsequent offending in the 11 years since these offences. Your prospects of rehabilitation are good as you have the support of your parents and current partner. You are employed and have a supportive work environment.
16The primary mitigating factor relied on was with respect to the state of your mental health. Mr McMullin diagnosed you as suffering from panic disorder and agoraphobia, generalised anxiety disorder and a major depressive disorder. These conditions have been long-standing dating back to 2002. They have ranged in severity over time and you were hospitalised in Melbourne, in the Melbourne Clinic for two weeks in 2002 suffering from panic attacks relating to your agoraphobia. Mr McMullin treated you for the condition in 2012 and you returned to see him in 2016 in the context of the current charges.
17In his opinion, as a direct consequence of your serious mental disorders you would find a period of incarceration significantly more onerous than others that do not suffer from these conditions. In addition, confinement would most likely seriously exacerbate your agoraphobia and depression. Your counsel also relied on a report from your GP, Dr Matthew Bennett as confirming that you have been suffering from these mental conditions since at least 2002. Your anxiety had increased substantially as a result of the court case and you had experienced severe generalised anxiety on a daily basis and intermittent panic attacks over the recent months.
18In addition, there was a reference from your employer Jillian Brennan at Brooklyn House, Supported Accommodation. Ms Brennan confirmed that you had been employed as a personal care worker since 2012. She regarded your offending as out of character and described you as being a punctual, diligent and honest worker.
Prosecution Submissions
19While the prosecutor accepted that a suspended sentence was within range, it was submitted that general deterrence was an important sentencing consideration in cases involving sexual offending against children. In particular, in this case, Charge 2, which involved the complainant licking your vagina. It was submitted that this was a serious example of the offence of indecent act with a child under 16.
Sentencing Remarks
20In sentencing you, I have taken into account the importance of general deterrence in such cases. The courts have long recognised the damage done to children by sexual offending. The victim impact statement was just read to this court and it is clear that the complainant has been significantly affected by your offending.
21It is not uncommon in cases such as this that the child thinks that everything that happened was all their fault. Your abuse of trust has caused the complainant difficulties in maintaining long term relationships and in maintaining or completing her education.
22As a result of your plea of guilty she did not have to give evidence at the trial but she gave evidence at the committal and she found it very stressful. I have taken her victim impact statement into account in sentencing you.
23The only appropriate sentence is one of imprisonment although due to the mitigating matters referred to by your counsel, I will suspend the sentence for a period of time. In sentencing you I have given you a discount for your plea of guilty and I have taken into account Principles 5 and 6 in Verdins case.
24In doing this, I have accepted Dr McMullin’s opinion that due to your mental health issues, incarceration will be more onerous for you than for those who do not suffer from your conditions. I have also accepted that incarceration would be likely to exacerbate your mental health issues.
25I must inform you that if you were sentenced to a period of imprisonment on Counts 1 and 2 on the indictment, you are to be sentenced as a serious sexual offender on Count 3. In determining the length of the sentence I must regard the protection of the community as the principle purpose for which the sentence is to be imposed, to achieve this purpose I may impose longer than appropriate sentence to the gravity of the offence, however, the prosecutor does not seek a disproportionate sentence and I will not impose one. Could you please stand up?
26On Counts 1 and 3 of indecent act with a child under the age of 16, you are sentenced to term of imprisonment of three months on each count. On Count 2 of indecent act with a child under 16 you are sentenced to 12 months’ imprisonment. The base sentence is the sentence of 12 months on Count 2. I accumulate one month of each of the sentences on Count 1 and 3 on the sentence on Count 2. This means that the sentence is a sentence for 14 months. I suspend the sentence for 14 months for a period of 14 months. I must inform you that pursuant to the Sex Offenders Registration Act, you are now a registered sex offender and as a registered sex offender you have to comply with various reporting conditions for life. My associate will approach you with the appropriate documentation relating to your reporting conditions and I am sure your counsel will take you through those at the end of this sentence. I would ask my associate to approach the dock.
27I do not believe I have to do a 6AAA with a suspended sentence?
28MS MORAN: I think Your Honour may actually. I think it is for anything involving a fine or a term of imprisonment and this is ‑ ‑ ‑
29HER HONOUR: I did not know that it does apply to a suspended sentence; does it? Because that ‑ ‑ ‑
30MS MORAN: I do not think it distinguishes between any form that is regarded as a term of imprisonment.
31HER HONOUR: All right.
32MS MORAN: I may be wrong but I would have thought Your Honour still needed to make the order.
33HER HONOUR: All right. I will just check that with my tipstaff.
34MS MORAN: I will have a look at the Sentencing Act, Your Honour.
35HER HONOUR: Look, I suppose if in doubt just do it because it is not going to make any difference in any event.
36MS MORAN: I have just got the section up, Your Honour. It includes an order under Division 2 of Part 3 or a fine. Division 2 of Part 3 ‑ ‑ ‑
37HER HONOUR: Because of course a suspended sentence is no longer an option available.
38MS MORAN: That is right, it is not even in here anymore. So you are probably correct about that actually.
39HER HONOUR: I think I – yes, because, yes, and 6AAA did not apply back then. Does defence counsel say anything about it?
40MS BLAIR: Your Honour, I do not say anything about it. It may well have applied towards the end of the – when the suspended sentences were available but it is a matter for Your Honour.
41MS MORAN: Look, I would submit it does not apply any longer because it does not appear in that division of the Sentencing Act so ‑ ‑ ‑
42HER HONOUR: All right, thank you. I thought that was the case. All right, in terms of the other applications made by the prosecution they were ‑ ‑ ‑
43MS MORAN: 464ZF, Your Honour, a forensic sample.
44HER HONOUR: 464ZF, I suspect the defence is going to say why would I make such an order and block up the bank of DNA samples when this lady has not offended for 11 years.
45MS MORAN: I would be urging Your Honour to strongly consider making an order for a forensic sample in this. It is an extremely serious offence committed by an adult on a child in my submission it is in the public interest that her DNA be placed on the register.
46HER HONOUR: Is it objected to?
47MS BLAIR: It is objected to. Your Honour, it is, you have got a woman who, but for the burglary and going equipped matter where she got a bond, but for that, there is no other offending and we are 11 years down the track and in my submission notwithstanding the seriousness of the offending she is unlikely to reoffend. Her prospects for rehabilitation in my submission are good and I would ask that you not make it.
48HER HONOUR: Yes. Look, it seems to me that it is not, it is a question really that the main purpose of the DNA base is that someone represents a future danger to the community.
49MS MORAN: Well, I do not think that is the criteria, Your Honour, and in my submission this is of very little import for the accused. She simply has to provide a sample that will take no time and cause no pain and it is simply a matter that will be on the register in the future should she reoffend.
50MS BLAIR: That is not part of the criteria.
51MS MORAN: I am not saying it is part of the criteria but Your Honour there is a gap of 11 years but that – I mean, that is not the longest gap that comes before the court in terms of rehabilitation. In my submission it is a serious enough offence to warrant it being, her DNA being placed on the register.
52Also, Your Honour has heard nothing about remorse in this matter. In my submission the court can hold certainly high hopes for the rehabilitation of the offender and that she never reoffends but in cases where there has been this kind of transgression in her adult life, it is in the interests of the community that her DNA be placed on the register, in my respectful submission.
53HER HONOUR: My instructor is preparing it, Your Honour. He has been a little bit tied up this morning. He knows Your Honour is sentencing it should be being broadened to the court room at any moment.
54MS BLAIR: Your Honour, can I just say the seriousness of the offence is not the sole criteria. The, the lack of intrusiveness or otherwise of the procedure is not a criteria. Your Honour, we are 11 years down the track which is a significant period of time and there has been no other transgression and recidivism or the ability of crime investigating bodies to be able to detect crime is one of the criteria. In my submission, Ms Metcalf just does not present that kind of risk. She is going to be on the register as well. That is probably not one of the criteria but there is that form of monitoring that would take place. Those are the matters, Your Honour.
55MS MORAN: I am just trying to look up the section Your Honour to inform you of the criteria.
56HER HONOUR: What about the fact that she is on the sex registration for life? Is that not going to ‑ ‑ ‑
57MS MORAN: Well that is one means of oversight. The DNA goes on the register in the case of a future commission of a crime where detection would be aided by the DNA of the offender being found on the register.
58HER HONOUR: It seems to me that she is on the register for life and that is sufficient for the protection of the community.
59MS MORAN: Well, that is a matter for Your Honour and I accept ‑ ‑ ‑
60HER HONOUR: Yes, it is and I also take into account the fact that it is covered by the Sex Registration Act. If that had not been in place I might have taken a different view.
61MS MORAN: As Your Honour pleases.
62HER HONOUR: Is there anything else?
63MS MORAN: Just – there were just a couple of matters, Your Honour, when you were reading out your sentence you referred in relation to Charge 2 to that involving a licking on the clitoris. It was alleged as a licking on the vagina so as to remove any doubt about there being sexual penetration.
64HER HONOUR: Thank you, yes.
65MS MORAN: And I think Your Honour also did not refer to the touching on the vagina that occurred in conjunction with Charge 2.
66HER HONOUR: No, the full details of the offending are contained in the summary of prosecution opening which forms part of the ‑ ‑ ‑
67MS MORAN: Yes.
68HER HONOUR: Yes, so I have just referred to the matters the prosecution ‑ ‑ ‑
69MS MORAN: That is understandable. So perhaps I should have really tendered the summary of prosecution opening upon sentencing indication as the summary for the plea just to avoid all doubt.
70HER HONOUR: It is incorporated onto the sentence and it automatically as far as I am concerned it is tendered on the – yes, I have actually said, “which will form part of this sentence.”
71MS MORAN: All right, great. Thank you very much, Your Honour.
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