Director of Public Prosecutions v Mitchell (a pseudonym)

[2022] VCC 2027

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-01094

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE MITCHELL (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Shepparton and Melbourne
DATE OF HEARING:	16 September 2022, 9 November 2022
DATE OF SENTENCE:	23 November 2022
CASE MAY BE CITED AS:	DPP v Mitchell (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 2027

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW SENTENCE

Catchwords:  Sentencing – sexual penetration of child of lineal descent, producing child abuse material.

Legislation Cited:                  Sentencing Act 1991. Sex Offenders Registration Act 2004

Cases Cited:R v Verdins [2007] VSCA 62. Sex Offenders Registration Act 2004.

Sentence:Imprisonment 12 years and six months. Non-parole period eight years and six months. Sex Offender Registration for 15 years. Forfeiture and Disposal Orders.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Baxter (For Plea)	Ms. A. Ruberto, Office of Public Prosecutions
Mr P. Wingrove
(For Sentence)
For the Accused	Ms K. Powell	Mr. I. Michaelson, Michaelson Lawyers, and Associates.

HIS HONOUR: 

1Luke Mitchell[1], you have pleaded guilty to one charge of sexual penetration of a child or lineal descendant and one charge of producing child abuse material.  The facts of your offending are set out in Exhibit A, the prosecution offending.  I was informed by your counsel that I can treat that document as an agreed statement of fact.  I incorporate it into these reasons for sentence and I sentence you on the basis of the facts set out therein.

[1]A pseudonym.

2Very briefly stated, on the afternoon of 17 January 2022 you were at your home in regional Victoria[2].  You were exercising access to your three children, your daughter Keira[3], then aged eight, and your 11-year-old and five-year-old sons.  Your then-partner, Kylie Porter[4], had gone out.  You took your daughter to your bedroom, her lower clothing was removed, you removed your pants and underwear.  You positioned your daughter on her hands and knees.

[2]A pseudonym.

[3]A pseudonym.

[4]A pseudonym.

3You set up and activated a camara on your mobile phone, climbed onto the bed behind your daughter.  You applied Vaseline to your erect penis and penetrated her vagina with your penis.  You rolled your victim onto her back and again inserted your penis into her vagina.  A noise in the house disturbed you.  You got up, wiped your daughter's vagina with a towel and then deactivated the camera.  The video you produced lasts for four minutes and 17 seconds.

4On 18 January Ms Porter checked the contents of your phone and discovered the video in the 'Recently deleted' folder of your phone.  Police were notified on 25 January; a video statement was taken from your daughter on 26 January.  She told police of an incident where, between 18 December 2021 and 23 January 2022, you sexually penetrated her vagina with your penis on a trampoline in the rear garden of your home.  You told her not to tell anyone or you would get into lots of trouble.  She did not give a description of the incident you filmed.

5Police arrested you on 26 January and located the video on your phone, still in the deleted items folder.  When interviewed you initially denied any offending but, when shown a still photograph from the video, admitted sexual intercourse with your victim.  Later in the interview you were evasive about your conduct.  You entered a plea to these charges at the earliest opportunity in June this year. 

6You have admitted a prior criminal history.  In 2007 you received an adjourned bond for recklessly causing serious injury.  In 2009 you were sentenced to a community corrections order for two charges of recklessly causing injury.  In 2016 you were fined for unlawful assault and in 2017 fined $1,000 for three charges of unlawful assault.  I was advised that you are pleading guilty to three charges of breach of intervention order this month in the Magistrates' Court.  You were on bail for those offences when you offended against your daughter.  You have pleaded guilty to the related summary offence of committing indictable offence whilst on bail.  

7Victim impact statement, Exhibit B and C, were tendered from Kylie Porter, your ex-partner, and Caitlyn Hammond[5], your victim's aunt.  Ms Porter says she is incapable of trusting anyone.  She has to live with the images burnt into her brain of your horrific assault on your own child.  Her heart goes out to 'such a beautiful little girl' and she feels sick at not protecting her from you.

[5]A pseudonym.

8Ms Hammond outlines the grief, anger, anxiety, dissociation, fear, and confusion your crimes have caused your daughter.  She properly reminded the court that Keira is a real person and not just a name on a report.  Keira has experienced serious damage which will affect all aspects of her being.  She will continue to experience the impact of your horrific conduct for the rest of her life.  I take the victim impact material into account in sentencing you.

9Turning to your personal circumstances, you are now 37 years of age, being born in October 1985.  You grew up in a small town near Swan Hill.  Your parents separated when you were still at school.  You left school midway through Year 9 level, and you were suspected to be suffering from autism spectrum disorder and ADHD.

10You did some intermittent casual work, attended agricultural college to learn to shear and worked as a rouseabout.  You have not worked for some years, and, prior to your remand, you were receiving a disability support pension.  Ms Lechner in her report, Exhibit 2, states that you are mildly intellectually disabled.  She also states that you have symptoms indicative of ADHD. 

11You have four children aged between 12 years and two years, the three eldest from your first relationship and it was your daughter from that relationship who is your victim,  and your two-year-old son from your relationship with Kylie Porter.  Your offending has terminated your parenting and your family have effectively abandoned you.

12Your offending is extremely serious.  Sexual offending against children by those in positions of trust and responsibility mandate severe punishment.  You were trusted by your daughter's mother to have weekend custody of Keira.  As her father your duty and responsibility was to nurture and care for your daughter.  She was only eight years old; you were 36 years of age. 

13Your offending was not isolated.  Your uncharged conduct demonstrates a course of conduct, although I make it clear I am only sentencing you for the offences to which you have pleaded guilty.  Your offending was pre-planned:  you waited until your partner had left the house, you attempted to persuade your young victim not to tell anyone of your conduct and traded on your daughter's feeling of love and care for you.

14For reasons I do not understand, you filmed your gross sexual exploitation of your young child.  Your explanation as to why you did so to Ms Lechner is, as the prosecution submits, both untenable and concerning.  Ms Lechner could not say whether you are a paedophile or not.  You clearly have paedophilic tendencies.  You filmed your abuse of your daughter so that you could watch it.  your conduct has had profound consequences and caused significant long-term psychological damage to what is described as a 'beautiful little girl'.

15Your counsel conceded that this court is obliged to impose a term of imprisonment for your offending.  Incest is a category 1 offence.  The maximum penalty for that offence is 25 years' imprisonment.  Such offence is the subject of the standard sentencing scheme and the standard sentence for Charge 1 is 10 years' imprisonment.  The standard sentence fixed by Parliament is a sentence for an offence in the mid-range of seriousness of such an offence, taking into account only the objective factors affecting the relevant seriousness of that offence.

16It together with the maximum penalty are legislative guideposts in the sentencing process. The standard sentence is not viewed as the starting point, nor the sentence that must be imposed. It is but one of the factors to be considered as part of the instinctive synthesis process of sentencing. It is to be considered along with all other factors mandated by s5(2) of the Sentencing Act.  So far as consideration of current sentencing practices is concerned, the court can only consider sentences imposed for standard sentence offences.

17In sentencing you I must have regard to a range of different factors.  I must consider the need to protect the community from you, I must give effect to principles of both general and specific deterrence, I must deter others from behaving as you did and deter you from any repeat of such behaviour.  I am required to express the community's denunciation of your conduct.  I must take into account the effect of your crimes upon your victim.  I must promote, if possible, your rehabilitation.  In short, I must balance your personal circumstances with the circumstances of your offending.

18Incest is a despicable crime.  Your offending represents a fundamental betrayal of all recognised values.  The objective gravity of your offending is grave, and your moral culpability is in my view high.  There are, however, mitigatory factors that I take into account in sentencing you.  Firstly, your pleas of guilty, I accept that you pleaded guilty at the earliest of opportunity.  By pleading guilty you have spared the community the time and expense of a criminal trial and your victim and her family the trauma of such a trial.  You are entitled to a significant reduction in sentence to reflect those early pleas of guilty.

19The value of those pleas of guilty is increased because of the effect the COVID-19 pandemic has had upon our legal system.  Your pleas of guilty evidence your remorse for your offending and an acceptance by you of your responsibility for these crimes.  Your cognitive difficulties and your mental health issues will make your time in custody more onerous for you than it would be for someone without you issues.  I accept that limb 5 of Verdins is enlivened and has application to you and I have reduced the sentence I would otherwise impose as a result of those principles.

20Your prospects of rehabilitation are difficult to define with accuracy.  Although I accept you have expressed remorse for your actions to Ms Lechner, it is also clear that you lack insight as to the impact of your offending upon your victim.  Ms Lechner was of the view that you represent a modest risk of reoffending but a moderate-high risk of the psychological and social adjustment scale.  I will repeat that:  a moderate risk of reoffending but a moderate-high risk on the psychological and social adjustment scale.

21Ms Lechner could not rule out a diagnosis of paedophilic disorder and your prospects may well depend upon treatment and assessment you will receive whilst in custody and you will be required, I imagine, to complete the sex offenders course.  For those reasons I find your prospects of rehabilitation to be guarded.

22I take into account the effect COVID-19 has had and will continue to have upon your time in custody.  Your personal vulnerabilities will be exacerbated and lockdowns, restrictions on visits and disruptions to course and programs will make your time in custody more onerous for you.

23The principal sentencing factors in your case are general deterrence, denunciation and just punishment.  The law recognises that sexual offences are crimes of violence that often cause irreparable psychological and physical harm to victims.  It is also well established that the harm caused by sexual abuse of children is severe and long lasting. 

24Severe psychological repercussions are presumed to be the result of incest.  Sexual offences that involve a breach of trust which occur in the victim's home where they have a right to feel safe are particularly egregious.  Having considered all relevant sentencing factors, I am of the view that the sentence I propose to impose for Charge 1 should be greater than the standard sentence.  The age of your victim and the nature of your offending are particularly significant in that regard. 

25Your conduct in filming your gross abuse of your daughter, Charge 2, is both a serious crime in its own right and an aggravation of your Charge 1 offending.  I have been careful to avoid double punishment for Charge 2.  Although the filming is, in my view, a circumstance of aggravation I have not treated it as such when fixing an appropriate sentence for Charge 1.  Because Charge 2 is a separate and distinct criminal conduct I have partially cumulated the sentence I impose on Charge 2 and have regard to principles of totality and concurrency.

26On all charges you are convicted.  On Charge 1, sexual penetration of a child or lineal descendant, you are sentenced to be imprisoned for 12 years.  On Charge 2, producing child abuse material, you are sentenced to be imprisoned for one year.  On the summary offence of committing an indictable offence of incest whilst on bail you are sentenced to be imprisoned for one month.

27I order that six months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1, which I declare to be the base sentence.  That is an effective term of imprisonment of 12 years and six months.  I order that you serve eight years and six months of that sentence before being eligible for parole.

28Pursuant to s6AAA of the Sentencing Act I indicate that but for your pleas of guilty I would have imposed a head sentence of 17 years and six months with a non-parole period of 13 years.  Pursuant to the Sex Offenders Registration Act 2004 you are a registrable offender and are required to report pursuant to that Act for 15 years. You will be provided with a document setting out your reporting obligations. I make the forfeiture order sought by the prosecution.

29Three hundred and one days, is that what ‑ ‑ ‑

30MS POWELL:  Three hundred and one days, Your Honour, not inclusive.

31HIS HONOUR:  Yes.  I declare that 301 days not including today have already been served of that sentence by way of pre‑sentence detention.  Are there any other orders required, Mr Wingrove?

32MR WINGROVE:  Nothing further, Your Honour.

33HIS HONOUR:  All right.  I will terminate the link.  Thank you for your attendance.

34MS POWELL: As Your Honour pleases.

35HIS HONOUR:  I will leave the Bench.

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