Director of Public Prosecutions v Morris
[2023] VCC 1753
•27 September 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-00584
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID ANDREW MORRIS |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 September 2023 | |
DATE OF SENTENCE: | 27 September 2023 | |
CASE MAY BE CITED AS: | DPP v Morris | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1753 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Plea of guilty - three charges of sexual penetration of a child under the age of 12 - two charges of sexual penetration of a child under the age of 16 – rolled up charges – offending against the daughter of close friend – offender invited to stay in family home – vulnerable victim – severe breach of trust – very serious example of offending – early plea of guilty – no prior criminal history – no indication of remorse or insight – guarded prospects of rehabilitation
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:DPP v. Amaral [2020] VSCA 290; Bugmy v. The Queen [2013] HCA 37; DPP v. Herrmann [2021] VSCA 160; R. v. Verdins (2007) 16 VR 269; McPherson v. The Queen [2021] VSCA 53; Sims v. The Queen [2022] VSCA 114
Sentence: Total effective sentence of nine years and 10 months’ imprisonment with a non-parole period of six years, six months fixed
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R.B. Hammill | Office of Public Prosecutions Victoria |
| For the Accused | Mr D. De Witt | McNally & Gleeson Lawyers |
HER HONOUR:
Introduction
1David Andrew Morris, you have pleaded guilty to the following offences:
(a) three charges of sexual penetration of a child under the age of 12 contrary to s49A of the Crimes Act 1958 ('the Act'), the maximum penalty for which is 25 years' imprisonment; and
(b) two charges of sexual penetration of a child under the age of 16 contrary to s49B of the Act, the maximum penalty for which is 15 years' imprisonment.
2Between April and July 2022, you were invited to stay with the victim's family. You had known the victim's mother, having communicated with her online over many years, although you had never met. The victim, who lived with her parents, was born in June 2010 and was between 11 and 12 years of age when you stayed at her house. She was in Grade 6 at her local primary school.
3At the age of seven, the victim was diagnosed with Asperger's syndrome. From that time she had been assisted by a psychologist to improve her social skills and to better understand people's intentions and social cues. The victim can become overwhelmed or stressed in certain situations.
4The offences for which you are to be sentenced relate to multiple acts of sexual penetration of the victim during the months you were a guest in the victim's home. Your offending began almost immediately upon your arrival.
5You were 48 years old at the time. You have no prior criminal history.
Circumstances of offending
6The circumstances of your offending are detailed in the Crown Opening on the Plea Hearing dated 11 August 2023, which represents the agreed basis upon which you are to be sentenced.
Background
7Prior to arriving in Victoria, you were living in Queensland where you had worked as a high school science laboratory technician. Through your online friendship, you had become close friends with the victim's mother and spoke frequently about all aspects of your lives. Although her husband knew of you, you were much closer to the victim's mother. To her, you were a trusted friend.
8In 2022 you arranged to come to Victoria to visit the family. You arrived on 28 March 2022, having driven from Queensland. During your stay, you slept in a bedroom at the back of the house. You would assist with various chores around the house and babysit the victim when needed. You were completely trusted and accepted into the family during your stay.
9On 6 July 2022 you returned to Queensland.
10Following your return, at approximately 9 pm on 24 July 2022, the victim's mother heard parts of a conversation between you and the victim over a video call on the victim's iPad. The victim's mother became concerned by what she overheard and called her husband over to listen. After they heard comments such as, 'I can't talk … just whisper then', and a reference to fingers, accompanied by words to the effect, '...oh, that was nice', the victim's parents interrupted the call and then spoke with their daughter.
11The victim explained to her parents that, 'if I tell you he will get into trouble', and said that what you did was 'illegal'. The victim ultimately disclosed that you had sexually abused her on a regular basis over almost the entire period of your visit with the family.
12The victim's parents contacted you immediately and challenged you about these matters. You responded by breaking down, crying, and saying that you 'had no words'.
13On the following day, the victim's parents accompanied the victim to speak with police and on 26 July 2022 she made a video-recorded statement to police in which she detailed your offending.
Offending
14You first offended against the victim, then aged 11, about two weeks after you arrived at the family's home. The victim had come home from school and was spending time with you in your bedroom. You talked about 'being horny' and then sat the victim down on your bed and removed her sport 'skorts' and underwear, exposing her vagina. You sat on your knees in front of the victim and began to rub her vagina with your fingers. You exposed your erect penis, rubbing it against her body, close to her vagina. You then penetrated the victim's vagina with your finger. The victim described this as feeling 'weird'. This conduct is the subject of Charge 1, sexual penetration of a child under 12.
15On another occasion, when the victim was still 11, you entered the lounge room, where she was lying on her stomach across an ottoman playing on her iPad. You removed the victim's skorts and underwear so that she was naked from the waist down. You then penetrated her anus with your penis for a few minutes. In her recorded statement the victim described this conduct, stating, 'he put his penis…in [my] butthole'. The victim confirmed you inserted your whole penis into her anus. This conduct is the subject of Charge 2, sexual penetration of a child under 12.
16About three weeks later the victim was in the pantry in the kitchen when you approached her. Again, you removed her skorts and underwear, leaving her naked from the waist down. You also took off your clothes and faced the victim. You began by rubbing your penis on and around her vagina before you took her to the couch in the loungeroom. There you performed oral sex on the victim; sexually penetrating her vagina with your tongue while she lay on the couch. The victim said this as occurred for a couple of minutes and said it felt, 'very weird'. This conduct is the subject of Charge 3, sexual penetration of a child under the age of 12.
17After penetrating her vagina with your tongue, you began to rub the victim's vagina with your fingers. You then masturbated in the victim's presence until you ejaculated. You are not charged with respect to this conduct, but it forms part of the context to your offending.
18The victim turned 12 in June 2022. On an occasion between June and July 2022, the victim was in your bedroom when you removed her lower clothing and performed oral sex on her, penetrating her vagina with your tongue. You then took the victim into the loungeroom, where you sexually penetrated her mouth with your penis, an act the victim described as 'weird and disgusting'. She told you to stop, but you did not. Instead, you continued to sexually penetrate her mouth until you ejaculated in her presence. These two instances of sexual penetration are the subject of Charge 4, a rolled-up charge of sexual penetration of a child under the age of 16.
19Charge 5 is a rolled-up charge reflecting five separate occasions you sexually penetrated the victim following her 12th birthday. These acts of sexual penetration all occurred on one day, a few days before you left for Queensland. They occurred in your bedroom and in the lounge room of the victim's home.
20You began by performing oral sex on the victim, sexually penetrating her vagina with your tongue before using your fingers to sexually penetrate her vagina. The victim described this as you touching her 'around and in the vagina hole'. You then inserted your penis into her vagina, where the victim says your penis entered her vagina 'only a little bit…' You then sexually penetrated the victim's anus with your penis. At one point you also introduced your penis into the victim's mouth, although the exact timing of this act is unclear.
21At no time did you use a condom.
22The victim told investigators that, other than on this last occasion, you did not have vaginal intercourse with her because, 'It would get us in trouble … pregnant', if you did.
23In her statement to police, the victim said you frequently cared for her in the absence of her parents. She said the offending only occurred after she arrived home after school, where you were alone with her at times her parents were away or at work. The victim told police that you would make her shower after any sexual activity and that she would also tell you when she was menstruating. Throughout your stay, the victim said you often touched her, cuddled her and would kiss her. The victim told police she remained in contact with you after you returned to Queensland was because she believed she loved you.
24The family home has video surveillance cameras installed in various locations. You were aware of the placement of these cameras and none of your offending is captured directly. As part of their investigation, police reviewed the CCTV footage from the property. On 17 June 2022 at the front door of the house the footage captures the victim saying, 'Are you horny - I am', and you responding by pointing to the camera, telling the victim, 'Shhh - I've told you about that', being a reference to the camera.
Arrest and extradition
25Victorian Police applied for a warrant for your arrest on 23 November 2022. You were arrested in Queensland and extradited to Victoria on 6 December 2022. You have been remanded in custody since that date.
Offence gravity and victim impact
26Sexual offending against children is abhorrent conduct. Your offending against this victim is a grave example of these inherently serious offences.
27The gravity of the offence of sexual penetration of a child under 12 is reflected in the maximum penalty of 25 years' imprisonment and 15 years' imprisonment where a child is under 16. These criminal offences are designed to protect children from the harm the law presumes attaches to premature sexual activity. In addition, the offence of sexual penetration of a child under 12 is a Category 1 offence and as such, pursuant to s5(2G) of the Sentencing Act 1991, a sentence of imprisonment must be imposed.
28Further, both offences are standard sentence offences governed by ss5A and 5B of the Sentencing Act 1991. The standard sentence for the offence of sexual penetration of a child under 12 is 10 years' imprisonment. For the offence of sexual penetration of a child under 16, the standard sentence is six years' imprisonment. Such provisions reflect the intention of Parliament that conduct such of yours is to be recognised as implicitly serious offending.
29The objective gravity of your offending is borne out by a number of aggravating features.
30You were a close friend of the victim's mother. You had been welcomed into the family home. You were entrusted by the victim's parents to care for their daughter at times they were not at the house due to work or other commitments. You egregiously breached the trust they reposed in you to care for the victim by sexually offending against her at times she was alone with you.
31The victim was particularly vulnerable, not only by virtue of her young age. You were aware of the added vulnerability caused by the victim's Asperger's syndrome, affecting her ability to understand social cues and norms. This is a significantly aggravating feature of your exploitative conduct.
32The age disparity between you was considerable: you were 48, while she was only between 11 to 12 years of age.
33This was not isolated or one-off offending. The offending commenced within weeks of you arriving in the home. Yours was persistent offending that continued when opportunities presented for the duration of your stay, a period of over three months. The victim was entitled to be safe and secure in her home, but she was not.
34In respect of one of the incidents making up Charge 4, it is an aggravating feature that you persisted with your offending conduct despite the victim saying she asked you to stop, adding, '…But he didn't stop'. To the contrary, you ignored her request that you cease and continued to insert your penis in her mouth until you ejaculated in her presence.
35What led you, a man of 48 with no prior convictions, to sexually offend against a child of a long-standing friend is difficult to comprehend. What is apparent is that you exploited the victim's vulnerability at times you were alone with her for your own sexual gratification. This was sustained and repeated offending where, despite having many opportunities to stop and reflect upon the wrongfulness of your conduct, you did not desist. Rather, your offending conduct escalated: in the few days before you left the family home, you sexually penetrated the victim on five occasions on one day.
36I consider this last incidence of offending was particularly grave, given the number of penetrative offences reflected in that charge. It was brazen offending. While there is no hierarchy of penetrative offences, it is notable that this charge includes an act of penile-vaginal penetration where no condom was used, exposing the victim to the risk of pregnancy. Given the victim had only just turned 12, this is a particularly serious instance of the offence of sexual penetration of a child under 16.
37There were also occasions, such as that evidenced by the CCTV footage, where you sought to ensure the secrecy of your conduct.
38The law recognises that sexual offences are crimes of violence that often cause irreparable psychological and other harm to victims, particularly children. Beyond that, I accept the submission made on your behalf that you did not engage in any other acts of violence or threatening conduct and that other aggregating features, such as degrading behaviour beyond the offending, were absent.
39It was also submitted there was no evidence of a proven lack of consent to the offending such as would further aggravate the offending, which I accept save for the incident referred to earlier that forms part of Charge 4. The gravity of your offending lies in the fact that the victim's 'apparent consent' arose in circumstances where you exploited her inherent vulnerability on occasions she was alone with you and in your care.
40The harm caused by your conduct to the victim and her family has been palpable and profound, as is evident from the victim impact statements made in this matter.
41Unsurprisingly, the victim's mother speaks of her initial disbelief in your conduct. She describes the 'roller coaster' caused by the trauma of your offending that has compromised her ability to trust in others. Although she bears no responsibility for your offending, she expresses guilt for what occurred, saying that as a parent she is meant to protect her child and now feels helpless about the situation.
42Both the victim's mother and father outline the impact of your offending on the victim. Both parents say the offending saw a regression in her developmental delay, necessitating therapy and time away from school. It was 12 months before her father says the victim would give him a hug.
43Your offending has had a multifaceted impact on the family beyond the emotional trauma they recount. There has been the cost of travel and interruption to work for her parents to accompany her to appointments at the Royal Children's Hospital.
44The fact the offending occurred in the sanctity of the victim's home is a matter that resonates in both victim impact statements. The family say they cannot afford to move from this house which is a constant reminder of your offending. Instead, they have moved or sold furniture to avoid this triggering memories for the victim.
45In his victim impact statement the victim's father expresses his anger, frustration, and sadness at the situation and speaks of his loss of trust in other people. He is concerned that his daughter will think he has failed to protect her. He concludes his statement by saying you took away his daughter's right to a 'normal, loving and joyful childhood' and that this 'breaks his heart'.
46Mr Morris, there can be no doubt your offending has had significant impact on the lives of the victim and her parents. I have taken that impact into account in sentencing you.
47The Court of Appeal has made it clear that the, 'Sexual abuse of children by those in positions of trust or responsibility with respect to them calls for severe punishment'.[1] This was appalling conduct for which you bear a high level of moral culpability.
[1] DPP v Amaral [2020] VSCA 290, at [33]
Personal circumstances
48I turn now to your personal circumstances.
49You were born in NSW and were raised there and later in Queensland. Your mother was the primary carer for you and your three siblings, while your father ran a family business in the explosives industry. Your father was a heavy drinker and you report that he was often violent when he was drunk.
50Your parents separated when you were 13 years old. Although you continued to live with your mother, you spent every second weekend with your father, where you continued to experience violence at his hands.
51You completed Year 11 at Windsor High School but did not enjoy school. You report feeling isolated from your peers and experienced bullying. You found it difficult to make friends.
52After leaving school, you were offered an apprenticeship in painting, but your father insisted you work in the family business instead, which you did for three years.
53After leaving the family business you pursued various roles working with animals, securing employment at the Sydney Aquarium and at a wildlife park in Cairns, where you were dismissed during your probationary period following an argument with management. You were in the process of obtaining qualifications in zookeeping through TAFE when you made the decision to return to work with your father. This was at a time when you were experiencing financial difficulties and your father offered you the opportunity to assume control of part of the family business. You worked and lived with your father during this period, until he unexpectedly passed away in 2000 when you were aged 26.
54You have had relationships with adult women, the most significant of which was with your ex-wife, a Canadian national, for eight years. You had met online and married in Australia in 2000. You have two children together, now aged 20 and 17. Following financial difficulties, you relocated to live in Canada with the family for two years, living with your wife's parents. You separated from your wife during this period and were ultimately forced to return to Australia as she withdrew support for your residency application. Your children remained in Canada with their mother.
55For the first 12 months after you returned, you sought custody of the children without success. In the past few years your contact with your children has been limited to online communication.
56Having returned to Australia, you began your own manufacturing business, selling explosives in the mining industry. You worked in this business for eight years.
57Various other roles followed, including work in a pizza restaurant, in property development and insurance sales; however, there were also periods of financial instability. In 2012 you secured employment with the Queensland Department of Education, working as a science laboratory technician at various schools. During COVID-19 you declined to be vaccinated and were suspended on full pay in 2022. After travelling to Victoria, you returned to Queensland in July 2022 to resume your employment when the vaccine mandate was lifted. You were then arrested.
58You were assessed for the purposes of the plea by psychologist Ms Naomi Cameron on 11 August 2023. In her report dated 31 August 2023 Ms Cameron details your personal history, including your early childhood experiences.
59You described your father as an 'abusive alcoholic' with a violent temper. You report instances where he 'ripped the kitchen apart' and would smash household items. You recounted occasions where he was physically abusive to your mother and report that he would hit you to antagonise your mother, including an occasion where he held a knife to your throat. You told Ms Cameron that your sister was also tormented by your father and that you lived in fear of him, sometimes hiding from him in your bedroom.
60You also report that you were befriended older boys in you early childhood and described performing 'sexual favours' for them over the period of a year. You never told your mother and say your father yelled abuse at you when you confided in him about this treatment.
61In her report Ms Cameron records that you were diagnosed with depression following the breakdown of your marriage in 2008, for which you were prescribed antidepressant medication for a few years. You told Ms Cameron that your current legal situation has 'triggered' your mental health symptoms, describing feelings of 'helplessness and failure'. Following psychometric testing, Ms Cameron concluded you are experiencing 'extremely severe levels of depression and mild levels of anxiety and stress'. She recommended immediate psychological intervention to prevent a worsening of your mental health condition.
62Ms Cameron diagnosed you with a post-traumatic stress disorder and an adjustment disorder with depressed mood.
63Ms Cameron discussed your offending behaviour with you during your assessment; however, you categorically denied sexually abusing the victim at all. Ms Cameron described your responses to these questions as 'evasive and tangential'. As to the causes of your offending, Ms Cameron stated as follows:[2]
'Mr Morris' sexual offending was likely precipitated by emotional and sexual intimacy deficits ... deviant sexual arousal and poorly controlled sexual urges and sexual disinhibition, and emotional congruence with the victim ... His offending was likely perpetuated by his offence-supportive attitudes, his possible minimisation of harm caused to the victim, and his perception that he would not be caught. He displayed a severe lack of introspection due to his denial, poor insight and limited self-awareness of the precipitants that led to his offending'.
[2] Exhibit 1, psychological report of Ms Naomi Cameron dated 11 August 2023, at [148]
64Upon receipt of Ms Cameron's report, I sought confirmation from your counsel Mr De Witt that you maintained your guilty plea to the charges on the indictment. Mr De Witt confirmed that you did and that you had entered your plea understanding that, by doing so, you acknowledge and accept responsibility in law for your offending.
Matters relevant in mitigation
65On your behalf Mr De Witt raised various matters that operate in mitigation of your sentence.
66First and foremost, you pleaded guilty to the charges. You did so at an early stage. There is utility in your plea, as it saves the court and the community the time and resources associated with a trial. Given the nature of the offending, it is of significance that your plea also saved the victim and her family the ordeal of giving evidence at trial and of being cross-examined. I attach considerable weight to this fact. Your guilty plea facilitates the course of justice.
67Moreover, at a time when delays in the criminal justice system continue in the wake of the pandemic, your plea has heightened utility.[3] You are entitled to, and will receive, a discernible sentencing discount for your guilty plea.
[3]Worboyes v. The Queen [2021] VSCA 169
68Your guilty plea signifies your acceptance of responsibility for this offending. However, beyond the fact of your plea, there is no other indication of remorse for your conduct. To the contrary, when you were assessed by Ms Cameron, you repeatedly denied any sexual offending against the victim, saying, 'These things didn't really happen.'[4] When asked if you did anything illegal with the victim, you replied, 'Not to my knowledge. There’s nothing I can think of'.[5]
[4] Exhibit 1 - Psychological report of Naomi Cameron dated 11 August 2023, at [83]
[5] Ibid, at [85]
69You gave Ms Cameron an account of engaging in sexual activity with the victim's parents when you visited. On the question of remorse, you attributed your remorse only by reference to having exposed the victim to this conduct, stating, 'I did some stupid stuff and put myself in a position where I was exposing her to sexual behaviour with her parents,' and that, ‘It’s a good chance she was picking up on those things'.[6] Your responses reflect a lack insight into the impact of your offending against the victim.
[6] Ibid, at [87]
70During your assessment with Ms Cameron you conceded being aware of the victim's developmental delay, describing her as 'autistic and shy at first, before gradually becoming more comfortable with [me]…'.[7]
[7] Ibid, at [81]
71While a lack of remorse does not detract from the utility of your plea, a guilty plea accompanied by genuine remorse is relevant to the weight that attaches to a plea. Your lack of remorse and the absence of any insight into your offending is also relevant to my assessment of your prospects of rehabilitation and the need for the sentence to specifically deter you from future offending conduct, to which I will return.
72Secondly, you are entitled to have your previous good character recognised in moderation of your sentence. Despite your early childhood experiences, at the age of 48 you had no previous criminal history. Until these offences you had an extensive work history and had otherwise been in age-appropriate sexual relationships, including a lengthy one with your ex-wife. I have taken your lack of any prior criminal history and previous good character into account.
73Thirdly, I have regard to the fact that your early childhood was fractured by experiences by family violence, exposure to your father's alcohol abuse and sexual abuse at the hands of older peers. These matters were also raised in a letter written by your sister dated 8 September 2023, in which she states:[8]
'David's childhood was a traumatic experience. As the eldest of four children, he was subjected to both verbal and physical abuse at the hands of our father who was an alcoholic and workaholic, and David grew up in fear for his own and our mother's safety. This affected David as he grew up, as he always felt responsible for the wellbeing of us all, as well as feeling intimidated and threatened on a near daily basis'.
[8] Exhibit 3 - Letter of Natalie Wells (sister) dated 8 September 2023.
74In the case of Bugmy v The Queen,[9] the High Court articulated two different ways that childhood disadvantage may be relevant in assessing an offender's moral culpability.[10] The first more general proposition is in the following terms: [11]
'The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way'.
[9] Bugmy v The Queen [2013] HCA 37 (‘Bugmy’)
See generally discussion in Direction of Public Prosecutions v Herrmann [2021] VSCA 160, [36]; Newton (a pseudonym) v The King [2023] VSCA 22, [36].
[11] Bugmy at [40].
75I am satisfied that your early childhood was a traumatic one, marred by exposure to alcohol, violence and abusive behaviour including early sexual abuse. Your experiences of being subjected to verbal and physical abuse by your father are supported by the account given in your sister's letter. I accept the general proposition articulated in Bugmy has application to your sentence and in my evaluation of your moral culpability. Although your childhood experiences do not excuse your offending behaviour, I give them some weight in mitigation of your moral culpability. In doing so, I have regard to the opinion of Ms Cameron that:[12]
'Mr Morris' adverse and traumatic childhood experiences (characterised by his father's violence and his childhood sexual abuse) likely predisposed him to develop Post traumatic Stress Disorder (PTSD)'.
[12] Op cit. Cameron (11/8/23) at [145]
76In relation to the second more specific proposition in Bugmy, the Court of Appeal has clarified that the question of whether a 'nexus' or 'realistic connection' is established between the offending and childhood disfunction will depend upon the 'extent and quality of the evidence' relied upon.[13]
[13]DPP v Herrmann [2021] VSCA 160, at [44]
77In her preliminary report, Ms Cameron expresses the following opinion:[14]
'Mr Morris' sexual offending appears to have been predisposed by his upbringing, his early exposure to sexualised activity and perpetual experiences of rejection and inadequacy, which have contributed to the development of implicit offence-supportive attitudes and cognitive distortions'.
[14] Op. cit. Cameron (11/8/23) at [137]
78Ms Cameron further states that you were 'never modelled healthy adult intimate relationships and developed a fractured concept of intimacy and relationships due [your] exposure to family violence during [your] childhood'. In my view, these matters provide a foundation to draw a nexus between your offending and your early childhood experiences. I accept that the second more specific limb in Bugmy operates, albeit to a limited extent, to further reduce your moral culpability.
79Although Ms Cameron found that your diagnosed PTSD arose from these childhood experiences, she ultimately concludes it played no role in your offending.
80In her supplementary report dated 31 August 2023 Ms Cameron determined you were not suffering from any impairment of your mental health at the time of your offending, stating:[15]
'In the past, Mr Morris has met the criteria for [a] Major Depressive Disorder, (MDD), predisposed by his trauma history and precipitated by relationship breakdowns …[However,] he did not disclose any major mood disturbance in the years leading up to the offending or at the time of the actual offending.
'At the time of the assessment in July 2023, Mr Morris was suffering from clinically significant symptoms of Post-traumatic Stress Disorder (PTSD), predisposed by his exposure to family violence and alleged childhood sexual abuse. However, he did not disclose experiencing any significant PTSD symptoms during the commission of the offending. His PTSD therefore did not appear to be a relevant factor in the offending as it did not adversely impact his functioning at the time'.
[15] Exhibit 2 – addendum Psychological report of Naomi Cameron dated 31 August 2023, at [24, a)]
81While I am satisfied there is evidence that your diagnosed PTSD is connected to your difficult childhood experiences, Ms Cameron's assessment prevents any conclusion that the symptoms associated with your PTSD were operative, or 'adversely impacted on your functioning', at the time of this offending.
82There is therefore no basis to find that limbs 1 to 4 of the authority in Verdins[16] operate in mitigation of your sentence. Ms Cameron's opinion precludes any finding that your mental health was impaired at the time of the offending such as to reduce your moral culpability for this offending by reason of your mental health or to moderate the need for your sentence to operate as a deterrent to others.
[16]R v.Verdins (2007) 16 VR 269
83Finally, I have regard to the fact your time in custody has been difficult for many reasons.
84First, much of your experience of custody as a first-time offender has been an isolating one. Until recently you had been held in protective custody due to the nature of your offending, spending much of your time alone in a cell. You report feeling fearful during this period, particularly after witnessing instances of violence between inmates. You have now moved to another area at Hopkins prison, due to good behaviour, where you are not subject to the same restrictions.
85Secondly, you have had no contact with your adult children, both of whom reside in Canada, which is a cause of distress for you. This too has added to the burden of your imprisonment.
86Further, Ms Cameron assesses that the 'volatile nature of the prison environment could lead to an exacerbation of your existing PTSD symptoms' and assessed you with an adjustment disorder caused by your current situation, which Ms Cameron states is characterised by your low mood, emotional despair and feeling hopeless and being without worth. Ms Cameron expresses the opinion that these conditions, together with your severe levels of depression, will make a lengthy period of imprisonment more onerous for you than for an individual without these mental health conditions. This conclusion enlivens limb 5 of the authority in Verdins and I have taken this into account in moderation of your sentence.
87Ms Cameron was also asked whether imprisonment would have an adverse effect on your mental health. In her supplementary report Ms Cameron is more equivocal on this point. She records that you are now engaged with custodial mental health services which is positive, but states that treatment for depression and PTSD can be limited in custody. She ultimately opines that if your condition is left untreated, [your] 'depressive symptoms may persist and manifest into an enduring MDD episode'.[17]
[17] Op cit. Cameron (31/8/23), at [24, f)]
88Limb 6 of Verdins operates in mitigation of sentence where the court is satisfied there is a serious risk of imprisonment having a significant adverse effect on an offender's mental health. Although it is possible this may occur in your case, on the material before me I am not satisfied there is a high risk of a significant decline in your mental health such as to meet the threshold for limb 6 to apply in further mitigation. However, this finding does not take away from my conclusion regarding the burden of your imprisonment due to your severe depression and diagnosed PTSD.
89Ms Cameron also assessed your risk of future offending. In her supplementary report Ms Cameron assesses that you pose a moderate risk of reoffending. In her report Ms Cameron notes the escalation in your offending, stating:
'There was definite evidence of escalation of sexual violence characterised by the increased frequency, diversity, and severity of the offending, escalating …[to] digital penetration, anal penetration and vaginal penetration'.[18]
[18] Op. cit. Cameron (31/8/23) at page 5
90Assessing your prospects of rehabilitation is not an easy task. On the one hand you have no prior criminal history at all. You have a lengthy and diverse work history and have otherwise led a law-abiding life. You continue to have the support of your sister, who knows of your offending.
91Given you will no longer be able to work with children, you will be unable to resume any employment in schools, but I accept that your long work history makes it likely you will be able to resume some form of work into the future.
92On the other hand this was serious offending in which you exploited the opportunity presented by being a guest in the house of the victim's parents to sexually offend against the victim when she was in your care. You have displayed no remorse or insight into the nature of your offending and have been assessed by Ms Cameron as a moderate risk of further offending. I could not find you pose a low risk of reoffending if you were in such a position again.
93You will obviously benefit from engagement in a sex offender treatment program; however, the extent to which this may moderate risk will depend on your ability to openly accept the wrongfulness of your offending against the victim. Presently I assess your prospects of rehabilitation are no better than reasonable. The sentence I impose must also operate to deter you from future offending for the protection of the community.
Other sentencing considerations
94In cases such as these general deterrence, denunciation and just punishment are sentencing considerations of great weight.
95Other adults who by virtue of a relationship of trust use that opportunity to exploit the vulnerability of children by sexually offending against them must be deterred by knowing that if detected they can expect to be sentenced to significant terms of imprisonment.
96Charges 4 and 5 are both rolled-up charges of sexual penetration of a child under 16. While the one maximum penalty of 15 years' imprisonment applies to these offences, when sentencing you it is relevant that the charges reflect two acts of sexual penetration in relation to Charge 4 and five acts of sexual penetration in relation to Charge 5, including the act of penile-vaginal penetration. The sentence I impose must reflect the total criminality of the offending encompassed by each charge, whilst having regard to the one maximum penalty.
97Upon being sentenced to a term of imprisonment on Charges 1 and 2, by reason of s6B(2)(a) of the Sentencing Act 1991, you are to be sentenced as 'a serious sexual offender' on Charges 3, 4 and 5. Pursuant to s6E every term of imprisonment imposed after the sentences imposed on Charges 1 and 2 must be served cumulatively upon any other sentence imposed unless otherwise directed by the court. Pursuant to s6D when sentencing you on these charges, I must regard protection of the community as the principal purpose for which sentence is to be imposed. The prosecution does not seek a disproportionate sentence to achieve this and, given your absence of priors, I do not propose to impose one.
Standard Sentence offence
98As stated, both offences to which you have pleaded guilty are standard sentence offences. The standard sentence for Charges 1, 2 and 3 is 10 years' imprisonment. For Charges 4 and 5, the standard sentence is six years' imprisonment. Section 5A of the Sentencing Act 1991 clarifies that the standard sentence is the sentence for an offence that is in the middle of the range of seriousness, taking into account only objective factors, affecting the relative seriousness of that offence.
99
While the court is obliged to take the standard sentence into account as one of the factors relevant to sentence,[19] as the Court of Appeal made clear in
Brown v The Queen
,[20] the standard sentence is to be treated as a 'legislative guidepost' no more, similar to the function served by the maximum penalty. It does not affect the established 'instinctive synthesis' approach to sentencing and does not require or permit a 'two-stage' approach to sentencing. Nor does the standard sentence affect other matters the court must consider in sentencing, including matters in mitigation. The court must explain how the sentence imposed relates to the standard sentence.
[19] Section 5B(2)(a) of the Sentencing Act 1991
[20]Brown v The Queen (2019) 59 VR 462; [2019] VSCA 286
100Section 11A of the Sentencing Act 1991 provides that, where the sentence imposed for a standard sentence is less than 20 years, the court must fix a non-parole period of at least 60 per cent of that term unless the court considers it is in the interests of justice not to do so. In this case there is no reason to depart from this statutory provision.
Current sentencing practices
101I turn now to current sentencing practices. In respect of a standard sentence offence, I am only permitted to consider previous sentences where the relevant offence was subject to the standard sentence scheme.[21]
[21] Section 5B(2)(b) of the Sentencing Act 1991
102In helpful written submissions, Mr De Witt referred me to a table of comparable Court of Appeal decisions and other sentences imposed in this court. I have considered each of these cases insofar as they inform current sentencing practices for these two standard sentence offences.[22] In particular, I have had regard to the sentence of six years, six months' imprisonment imposed by the Court of Appeal in McPherson on a single charge of sexual penetration of a child under 12, following trial, being a single act of digital penetration. There, however, there were other powerful matters that operated in mitigation of sentence, including the offender's mental health including PTSD, adjustment disorder, depression and anxiety. The offender was 32 years old at the time of offending and had been sexually abused in foster care.
[22]McPherson v. The Queen [2021] VSCA 53; Sims v. The Queen [2022] VSCA 114
103I also have regard to decision of the Court of Appeal in Sims, where the offender was sentenced to five years' imprisonment on a charge of sexual penetration of a child under 16, being a rolled-up charge reflecting four separate acts of penetration, and a total effective sentence of six years, three months for other offending, including producing child abuse material. There the offender was 47 and had no prior criminal history. The victim was 15 years old and resided in DHHS residential care. The offending was described as 'persistent' and the offending only ceased after detection. In that case the offender entered an early plea and was found to have demonstrated remorse and his efforts at rehabilitation were described as 'substantial'.
104I have had regard to these cases insofar as they illuminate current sentencing practices. However, current sentencing practices are no more than a guide and do not determine or limit the appropriate exercise of the sentencing discretion. Every case must turn on its own facts and circumstances.
105The sentences I have imposed for Charges 1, 2 and 3 are each below the standard sentence for the offence of sexual penetration of a child under 12, having regard your lack of prior history, previous good character and early guilty plea. Although these matters continue to operate in moderation of sentence, I consider Charge 4 and particularly Charge 5 to be very serious examples of the offence of sexual penetration of a child under 16, having regard to the instances of offending reflected in each of those charges. For that reason, in relation to Charge 5 a sentence exceeding the standard sentence has been imposed. I also consider that your moral culpability increased with each act of sexual penetration perpetrated against the victim over the duration of your offending.
Sentence
106Balancing the matters to which I have referred, whilst having regard to the maximum penalties imposed for each offence and guided by the standard sentence, I sentence you as follows.
107On Charge 1 you are convicted and sentenced to seven years' imprisonment.
108On Charge 2 you are convicted and sentenced to seven years' imprisonment.
109On Charge 3 you are convicted and sentenced to seven years' imprisonment.
110On Charge 4 you are convicted and sentenced to six years' imprisonment.
111On Charge 5 you are convicted and sentenced to seven years' imprisonment. This is the base sentence.
112It is appropriate that there be cumulation in respect of Charges 1 and 2. I order that four months of the sentence imposed on Charge 1 and six months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 5 and upon one another.
113I have regard to the serious sex offender provisions in determining the amount of cumulation on to impose in respect of Charges 3 and 4. I have not ordered full cumulation of those sentences, having regard to the sentencing principle of totality. I order that 12 months of the sentence imposed on Charge 3 and 12 months' of the sentence imposed on Charge 4 be served cumulatively upon the sentence imposed on Charge 5 in addiction to the cumulation imposed in respect of Charges 1 and 2.
114This gives a total effective sentence of nine years, ten months’ imprisonment. I fix a period of six years, six months' imprisonment before you are eligible for parole.
115Before proceeding to declare pre‑sentence detention can I just confirm with counsel that the pre‑sentence detention includes time where the accused was in custody awaiting extradition.
116MR HAMMILL: Extradition, yes, it does.
117HER HONOUR: It does? Yes, thank you. And that's 295 days.
118MR HAMMILL: Yes, indeed.
119HER HONOUR: Yes, thank you.
120Pursuant to s18 of the Sentencing Act, I declare 295 days served by way of pre‑sentence detention reckoned as served under the sentence I have imposed and direct that the declaration be entered into the record of the court.
121Finally, pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty the sentence I would otherwise have imposed is a sentence of 13 years' imprisonment with a non-parole period of nine years.
122I also declare that you are sentenced as a serious sexual offender on Charges 3, 4 and 5, and direct that this fact be entered into the record of the Court.
123Finally, the provisions of the Sex Offenders Registration Act 2004 apply and the reporting obligations under that Act apply for life. Those obligations are set out in a document that will be provided to Mr Morris to sign.
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