Director of Public Prosecutions v Mountney, Jeremy
[2012] VCC 1889
•28 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01705
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| JEREMY MOUNTNEY |
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JUDGE: | Her Honour Judge Lawson | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 November 2012 | |
DATE OF SENTENCE: | 28 November 2012 | |
CASE MAY BE CITED AS: | DPP v Mountney, Jeremy | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1889 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – Sentencing – Sexual penetration of a child under 16 years – Youthful offender – Non-custodial sentence.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M. Rezsneki | Craig Hyland solicitor for Public Prosecutions |
| For the Accused | Mr M. Sturges | Victoria Legal Aid |
HER HONOUR:
1 Jeremy Mountney, you have pleaded guilty to one charge of sexual penetration of a child under 16 years. The charge is serious and that is reflected in the maximum penalty prescribed by Parliament and that is 10 years imprisonment.
2 I shall now proceed to sentence you on the basis of the Crown Opening, that was marked as Exhibit 1, there being no objection taken to the opening at the plea hearing.
3 The charge relates to you having penile vaginal sex with the victim whom I shall call by an acronym MK. The charge is representative of two occasions of sexual penetration. MK was 14 at the time of the offending and you were aged 18. You had previously gone out with her older sister and had through that association formed a friendship with MK that later become intimate. You had known her for about two years.
4 Between 1 February 2011 and 23 February 2011 you had intercourse with MK on two occasions without using a condom. As a consequence of unprotected sex she became pregnant; that pregnancy was terminated on 25 March 2011 and DNA testing confirmed that you were the male contributor to the products of conception.
5 The victim gave a statement to police on 4 April 2011.
6 On 25 October 2011 you were interviewed by police during which time you made full admissions to the offending. You acknowledged that it was against the law to have sex with a minor and that is why you told the police that you ended the relationship. You also understood that the law against sexual penetration of children was to protect them from predatory behaviour.
7 I note that there was no evidence of coercion and some evidence your relationship with MK was as typical adolescents exploring sexuality, although Mr Gibson, your counsel, did concede that consent cannot be a mitigating factor and he referred to the decision of Clarkson v. the Queen and EGA v. the Queen [2011] VSCA 15.
8 A Victim Impact Statement has not been filed however through Mr Gibson you do acknowledge that the fact of sexual intercourse, the pregnancy and its termination would have had a significant traumatic impact on MK and her family.
9 In sentencing you I have taken into account various mitigating factors outlined by Mr Gibson namely:
(1) your full and frank cooperation with the investigating police officers;
(2) your fulsome admissions in the record of interview;
(3) your plea of guilty entered at committal mention on 14 September 2012, at the earliest stage;
(4) by your plea you spared the victim the further trauma and inconvenience of having to come and give evidence at the trial and you spared the state the cost and expense of a trial, you thereby facilitated justice and your sentence will be discounted accordingly;
(5) I accept the plea is indicative of genuine remorse and acceptance of responsibility on your behalf;
(6) you are a young offender and your rehabilitation is a significant focus of the sentence as opposed to a sentence for a more mature offender;
(7) you are a person who was previously of good character and that is evidenced in the references provided to the court from; Greg Bennett, he has known you for 10 years; Lauren O'Reilly who has known you for two and a half to three years and letters from your mother and sister, each of which were exhibited at the plea hearing;
(8) you have no prior criminal history and no matters outstanding; and
(9) I have taken into account the delay between being interviewed by police and laying the charges.
10 You were interviewed on 25 October 2011 and charges were not laid until late June 2012. Given your age, that is, your youth that would have been an anxious time and would have weighed heavily upon you.
11 As far as your personal circumstances are concerned I note you are now 20. Your formative years were very disrupted. You are one of three children and you were born in Tasmania. Your parents marriage was characterised by significant domestic violence, both physical and verbal. They separated when you were about 11 and your mother moved to Victoria.
12 Following that you were backwards and forwards living between your respective parents' places of residence. Your father continues to live in Tasmania with his new partner and your mother lives in Melbourne. There has been in the past conflict between yourself and your step mother and that resulted in you returning to Victoria to live permanently.
13 The disruption in your formative years has had a significant impact on your social and personal development. You have a history of suffering from depression and on an occasion attempted suicide.
14 Mr Bennett in his reference speaks of the difficulties that you had coping with your tumultuous childhood and expressed the opinion that the lack of a male father figure for many years throughout your teen years and into early adulthood has not helped you understand the full responsibilities of adulthood. You discussed this offending with him openly and he speaks of your deep remorse and regret associated with the offending. He expressed the view that a repeat of this sort of offending is unlikely.
15 You had trouble settling at school in Victoria attributable to your disrupted childhood. You completed Year 9 at a specialist school and eventually left school to undertake a pre-apprenticeship at TAFE and then a carpentry apprenticeship.
16 Notwithstanding your difficult personal circumstances and disrupted childhood you do have a consistent work pattern. Currently you are working as a trained and accredited body piercer. You have aspirations for the future to develop your career and body piercing and eventually to establish your own business.
17 I had regard to the references provided to the court from Mr Bennett and Ms O'Reilly and confirmed that apart from this current matter I consider that you have and enjoy conventional relationships and age appropriate relationships.
18 I have taken into account the matters put by Ms Pamela Matthews, forensic psychologist, in her report that was tendered as an exhibit. I accept her conclusion that your behaviour is not the product of sexual deviance or aberrant behaviour. She considers that your risk of reoffending is very low. She recommended some counselling and psychoeducation in relation to adolescent sexuality, particularly the social management of a situation and relationships that may decrease your future risk of reoffending and in regard to safe sex practices. She has also recommended a referral under a Mental Health Plan for treatment for depression.
19 I accept her specific recommendation that you are not to be involved in a Sex Offenders Treatment Program given your age and lack of sexual deviance.
20 A written apology signed by you was provided to the court in which you express deep regret for what happened with the victim and you express your sorrow for the pain and suffering that was inflicted by your actions.
21 You say that you realise that you need to think first before doing things in life as there are consequences to all actions and that it was never your intention to cause MK or her family any hurt or unpleasantness. You tell the court that you have had counselling, you now are working full-time and you are slowly getting your life back on track and that you will never do anything like this again as it is not in your nature to hurt anyone and you express deep remorse for your actions.
22 Overall, having regard to your response to these charges, I consider that you have excellent prospects of rehabilitation and the likelihood of you reoffending in a like manner is negligible.
23 Mr Gibson submitted that a without conviction Community Corrections Order was the appropriate disposition.
24 The Crown accepted that a Community Corrections Order was within the range of dispositions available to the court, but urged the court to impose a conviction having regard to the particular circumstances of the offending. The policy behind the charge of sexual penetration of a child under 16 being to prevent harm to children, and that is not effected by consent, and the aggravating features of your offending being the fact that you did not use a condom, the age differential between yourself and the victim, the fact that you were aware what you were doing was wrong, your response once it became known that your victim was pregnant and also the fact that on one occasion when sex took place it was in the presence of another.
25 Mr Gibson acknowledged many of the submissions made by the Crown but emphasised your previous good character, your immaturity, your more appropriate response following the charges being laid and the impact of a recording of a conviction on your future prospects.
26 I accept that at the time of this offending you were a very immature person and the way you responded when told of the pregnancy was attributable to your immaturity and the fact that you panicked and had difficulties coping with MK's situation.
27 Overall I accept you have drawn a lot personally from this experience and are now deeply and genuinely remorseful for the effect of your offending upon MK and her family. I have already referred to your open apology where you acknowledge the harm that you have caused to MK and her family.
28 It is in your interests and that of the community's to support your ongoing rehabilitation in the community. I have had regard to all the matters set out in s.8 of the Sentencing Act. In exercising its discretion whether or not to record a conviction the court must have regard to all the circumstances of the case and that includes the nature of the offence, the character and past history of the offender and the impact of the recording of a conviction on the offender's economic or social wellbeing or on his or her employment prospects.
29 Overall I consider, Mr Mountney, that your offending was directly related to your immaturity, lack of appropriate guidance from responsible adults about psycho-sexual development and safe sex practices. I also consider that this offending is related to normal sexual exploitation by adolescents and sexuality rather than deviant or aberrant sexual behaviour. You now fully comprehend the law and the policy behind outlawing sex with underage females. The law is to protect such children from predatory behaviour and in some instances indeed to protect young people from themselves.
30 I am satisfied having regard to your background and antecedents, the particular circumstances of the offending and your response to the charge that a conviction may prove to be counter productive to you and undermine your future rehabilitation.
31 I have also had regard to the fact that a conviction may impact on your future employment prospects or ability to operate and conduct a business and as such I do not consider a conviction is warranted.
32 I confirm in sentencing you it is important that the court emphasises the need for general and specific deterrence however I note specific deterrence is moderated to an extent here because of your youth and the fact that your post-offence conduct indicates to me that the likelihood of reoffending is negligible. I must impose just punishment.
33 I consider overall you have excellent prospects for rehabilitation and do not consider that you will reoffend in a like nature in the future.
34 You have been assessed as a suitable candidate for a Community Corrections Order and you have indicated in open court that you consent to the imposition of such an order.
35 I will now make the formal court orders.
36 The formal order will be in respect to the one charge of sexual penetration of a child under 16, without conviction, you will be placed on a 12 months Community Corrections Order.
37 The special conditions will be that you undertake assessment and treatment including assessment for alcohol problems, a mental health assessment and offending behaviour program and be subject to supervision during the operational period of 12 months.
38 It is to be noted that this is a case where it is not required as part of the Community Corrections Order that you undertake the Sex Offenders Treatment Program having regard to the expressed comments of Ms Pamela Matthews that have been endorsed by this court.
39 My associate will approach you shortly so that you can sign that order.
40 I also make the order for the retention of the forensic sample pursuant to s.464ZFB(1) of the Crimes Act 1958, and that is having regard to the seriousness of the circumstances of the offending, the fact that the order was by consent and the granting of the order is in the public interest.
41 Pursuant to s.6AAA of the Sentencing Act 1991 but for your plea of guilty I would have sentenced you to 12 months detention in a Youth Justice Centre.
42 Finally, pursuant to the Sex Offenders Registration Act 2004 this charge is a Class 1 offence and as such registration is mandatory and the reporting period is 15 years.
43 My associate will also approach you and provide you with a document setting out the reporting requirements which you must now acknowledge.
44 I will sign the order for the Community Corrections Order and then I will ask that you sign the documents. I will ask your counsel to go down with my associate, so that he can assist you in that regard.
45 All right, so you have signed all those documents. Mr Mountney, you can come out of the Dock now and once I leave the Bench my associate will make copies and provide those to you. All right?
46 PRISONER: Yep.
47 HER HONOUR: Just take a seat there and wait, it shouldn't be too much longer.
48 MS REZSNEKI: Your Honour, two just very, very minor matters. One was I think in this case the maximum penalty is 10 years because it's for a child between 12 and 16.
49 HER HONOUR: Right, well, I was told by counsel it was 15. I was told it was 15.
50 MS REZSNEKI: I might double-check that, Your Honour, I thought it was 10.
51 HER HONOUR: It's in the Crown Opening, so you can check the section ‑ ‑ ‑
52 MS REZSNEKI: I will double-check, Your Honour.
53 HER HONOUR: What section is it under? I haven't got the Indictment. Have you got the Indictment here?
54 MS REZSNEKI: I don't think I brought the right legislation. Your Honour, the other thing was is I thought Your Honour had said there was a Victim Impact Statement filed.
55 HER HONOUR: No, no. The victim provided a statement to the police, but there is no victim impact.
56 MS REZSNEKI: Sorry both of us misheard that, Your Honour.
57 MR STURGES: Apologies, Your Honour.
58 HER HONOUR: No, it was the Video Audio Recorded Evidence. It's all right, I'm just looking it up. It's Level 5, so what's that? It is 10 years, you're right. 15 is for where it's under care, supervision an authority.
59 MS REZSNEKI: That's right. Sorry, Your Honour.
60 HER HONOUR: I will amend my sentencing remarks so that the maximum penalty is 10 years. It's 15 only where it's care, supervision and authority and that's not being alleged here.
61 MS REZSNEKI: Thank you, Your Honour.
62 HER HONOUR: No, that's okay, because otherwise my sentence would be wrong. I did say the victim provided a statement to the police on 4 April 2011 and by that I meant her Video Audio Recorded Evidence.
63 MS REZSNEKI: Yes, so we both misunderstood and thought Your Honour had said there was a Victim Impact Statement which there wasn't. No, sorry, Your Honour.
64 HER HONOUR: No, and then I read on to say, "No Victim Impact Statement has been filed".
65 MS REZSNEKI: Thank you, Your Honour.
66 HER HONOUR: Thank you for that.
67 MR STURGES: Thank you, Your Honour.
68 HER HONOUR: It's always good to say before, so that any error on the records are remedied before it gets made into the permanent record ‑ ‑ ‑
69 MS REZSNEKI: That's right, Your Honour.
70 HER HONOUR: ‑ ‑ ‑ and it saves a lot of time and effort. All right, and I do ask, Mr Sturges, that you spend a little bit of time just explaining to your client Mr Mountney the requirements of the Sex Offenders Registration Act because it is quite onerous if they are breached.
71 MR STURGES: Yes, Your Honour.
72 HER HONOUR: The penalties are quite severe.
73 MR STURGES: Certainly, Your Honour, we will spend some time ‑ ‑ ‑
74 HER HONOUR: I know it's something over which I have no control. It's a matter that's been set out by Parliament and it's not discretionary, it's mandatory, so it's something that he will have to be very mindful of for the future.
75 MR STURGES: Certainly. We've had numerous discussions, including this morning regarding it, but I will go over it again with him.
76 HER HONOUR: All right. I'm just concerned given his situation; he really needs to understand properly what the rigours are of that regime.
77 MR STURGES: Certainly, Your Honour. Thank you.
78 HER HONOUR: Yes, okay. All right, I'm just going to step off the Bench.
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