Director of Public Prosecutions v Napier (a pseudonym)

[2019] VCC 1524

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT BENDIGO
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEAN NAPIER (a pseudonym)

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Bendigo
DATE OF HEARING:	4 September 2019
DATE OF SENTENCE:	18 September 2019
CASE MAY BE CITED AS:	DPP v Napier (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1524

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Cameron	Office of Public Prosecutions
For the Accused	Ms V. Petsinis	Galbally & O’Bryan

HIS HONOUR:

1Dean Frank Napier[1], you have pleaded guilty to four counts of penetration of a child under the age of 16 and one charge of sexual assault with a child under the age of 16.

[1] A pseudonym

2The first of those sexual penetration charges is one of course of conduct and carries a maximum penalty of 10 years.  The other three carry a maximum penalty of 15 years.  The charge of sexual assault carries a maximum penalty of 10 years.

3You pleaded guilty at an early opportunity and you are still only 20 years of age.  You were 17 years of age at the time of the offending and that plays a very significant part in this sentencing process.  You were in fact not charged until you had attained the age of 18 years, which of course took you out of the Children's Court jurisdiction.

4My understanding of the circumstances are that when a child is sentenced in the Children's Court the aspect of general deterrence plays no part.  It is a very significant difference and in these circumstances a very significant delay.

5I accept that your plea of guilty was, as I said, at a reasonably opportunity.  Obviously, you will get the utilitarian benefit of that plea of guilty and I accept that at least now you are displaying appropriate remorse.

6You have no prior convictions and that is of importance.

7Also in this situation I am aware that because of your age at the time you are not be placed upon the Sex Offenders Register and you will not be sentenced as a serious sexual offender.

8The circumstances of the offending are contained within the Crown opening.  I have, subsequent to the plea, had the opportunity of reading the VARE made by the complainant in respect to a couple of matters and I will simply comment on that.  It is not a contest on the facts here, but there is a couple of aspects which I find quite interesting.

9You were 17 years of age at the time of the offending and the victim in this matter was 12 years of age.  You were fully aware of that.  You had met in 2016, at a time when she was only 11 years of age.  A relationship commenced between the two of you in 2017, she was in Year 7 and you were in Year 12.

10On 10 April 2017, you were invited over for her house for dinner and from that point in time you both regard yourselves as being in a boyfriend/girlfriend relationship.

11Between July and August 2017 at the end of each school day the two of you would meet near the stairs at the school where you would kiss.  You were caught one day by another student and the matter was dealt with by the assistant principal.

12It is clear, and I will not go into all the detail of this, that you were fully aware that what you were doing was wrong and you had been warned about the potential consequences of it on a number of occasions.  But in any event, the opening says multiple meetings took place about all this and it is clear that you were told in fact of the legal ramifications.

13You had constant daily contact after school via Skype and the conversations were frequently of a sexual nature.

14On 28 August 2017, you gave her a ring for her birthday. It was gold coloured, encrusted with diamonds and I have read what you had to say in the VARE tape about that and the overall circumstances are astonishing in some respects.

15But in any event, between 1 April 2017 and 30 June 2017 the both of you would catch the school bus to Sunbury every day.  There was a directive and seating arrangements put in place which dictated that Year 12 students and Year 7 students be kept separate.  Year 12 students were supposed to sit at the rear of the bus and Year 7s sitting towards the front.  Despite that you and the victim would always sit next to each other towards the middle of the bus.

16Whilst on the bus and this occurred on many occasions, as it is a course of conduct charge, you would penetrate her by placing your fingers inside her vagina.  This occurred as the bus was nearing the Holden proving ground in the town of Monegeetta.  The two of you stated this happened most days, if not everyday whilst on route to school.

17You would sit with one another and you would then place her blazer over her lap and sit in a manner whereby other students could not clearly what was happening.  Again, I find that situation astonishing that it could continue for that period of time.  Smacks of risk taking to a very high degree in my view.  But in any event that happened on many occasions and gives rise to Charge 1, that is sexual penetration, digital.

18On an evening between 1 July 2017 and 31 July 2017, you were visiting the victim and her brother.  She went to bed and was nearly asleep, you came into the bedroom.  The two of you started kissing.  You then performed oral sex on her by licking her vagina.  You finished and walked out of her bedroom, which was observed by her brother.  He asked you what you were doing, to which you replied that you were, 'Just checking up on her'.  Charge 2, sexual assault, that this gives rise.

19Between 1 August 2017 and 31 August 2017 the two of you were at her home and decided to go out.  Her brother was home and asked where you were going.  You said that you were going for a walk.  The two of you walked to the golf course along the fairway and stopped nearby one of the greens.

20You lay down on a blanket and you had a picnic.  After eating the two of you spoke about having sex, decided not to as she had her period.  The two of you then spoke about the possibility of having anal sex, but decided against that also.  You then asked the complainant for a, 'Blow job'.  You then removed your penis from your pants, placed your penis into her mouth and she performed oral sex on you.

21The Crown says that she sucked your penis until you ejaculated in her mouth and then removed your penis from her mouth and ejaculated on her face.  You stated in your record of interview the complainant asked you to ejaculate in her mouth and on her face.  I have read the VARE and I do not think that is true.  Her description of that act is that it stopped because she got sick of doing it.  But in any event that gives rise to Charge 3.

22On Saturday, 19 August, prior to her birthday, the two of you were at home in your bedroom.  Your mother went to pick up your sister from the train station.  While they were gone the two of you undressed, you put a condom on and put your penis inside her vagina, had penial-vaginal sex with her.  You said that sex finished when she had an orgasm.  A short time after that your mother and sister arrived home.  Her version of events was it stopped because the pair of you heard your mother arrive home, so I do not believe that version of events by you either.

23In August 2017, this is a matter that was raised solely by yourself and I accept that.  Sometime after Charge 4 the two of you were at your home.  Both of your mothers were there.  They left for a while.  Whilst they were gone the two of you went to your bedroom and began kissing and got undressed.  You then got on top of her, put your penis into her vagina.  That lasted for a short time before she climbed on top of you while you were lying on you back.  You reinserted your penis into her vagina and continued to have sex that lasted for a short time before she got off you and you then masturbated to ejaculation.  In her VARE of course she makes no mention of that incident and seems to be quite firm that only a couple of incidents occurred.  I do not know where the truth of all this lies, but it is certainly of some concern.

24When you were arrested by police you do make full and frank admissions to the offending and I have no reason to doubt that had you been interviewed when you were still 17 or even still 18 you would have done the same thing and accordingly the matter then could have been dealt with in the Children's Court.

25But in any event, you were not interviewed until 28 December 2018, sometime after, as I have said, your 18th birthday.  The matter resolved at any early time and again I will be giving you the benefit of that.

26There is before me a victim impact statement from the victim.  She says that she is not trusting of people.  Would like to be like any other girl her age, but cannot be.  She feels like a walking target.  She describes the psychological difficulties that occurred from this.  She describes the difficulties that she has had subsequently with her parents and she says that she suffers ongoing psychological difficulties.  I have got no doubt that is true.

27I made it clear I have read the VARE and it is quite clear to me that this girl comes from a very difficult set of circumstances in her background and I think she would have been particularly vulnerable.  Whether the relationship was as even handed as you purport it to be, I would have serious doubt.  It is a very serious matter for - forgetting ages even for the moment, for a Year 12 student to be having a sexual relationship with a Year 7 student.  I think anybody would know that and you certainly did because you had been warned and decided to persist.

28I have also read the victim impact statement from her father and it displays some of the fears that fathers often have in these circumstances when they find that their daughter has been in a totally unlawful and totally inappropriate sexual relationship, particularly at the age of 12.

29The offending has to be regard as serious.  In this jurisdiction it calls for the application of general deterrence and in the Children's Court it does not, which seems to me to be a fairly bizarre set of circumstances.  I think in your situation it has probably reached a stage now because of these proceedings specific deterrence are not of great significance, but there must of course be denunciation for this type of offending and there must be an appropriate punishment.

30The plea was essentially based around whether that punishment should involve a very significant community corrections order or whether it should involve a youth justice sentence.

31I have had you assessed for a community corrections order and for a youth justice sentence and you have been found to be suitable for both.  You yourself gave sworn evidence during the course of the plea and very helpful submissions were made on your behalf.

32As I say, I have got grave doubts about the even handedness or the balance of power in this relationship.  It occurred, but be that as it may I have got the reports of Mr Newton and I have got the report of Mr Hanley, who works with Mr Newton.

33You have got no priors.  I think you have now clearly realised the seriousness of what you did.  I think it is important that whilst there are no Verdins principles involved in all this that it seems to me you have now completed school, you have clearly decided to try and get your life on track.

34You, when speaking to Mr Newton, expressed remorse to him and expressed an understanding at least by the time you spoke to him, which was in July of this year, that you were developing an understanding of the seriousness of what you had done to that girl.

35In the end, the thing that saves you from a youth justice centre, Mr Napier, is the significant delay and the consequences of that, the fact that you are so young, the fact that you have no prior convictions and basically what was contained in the report by Mr Hanley.  He is a psychologist.  He, as I understand it, specialises in the treatment of people who have been engaged in sexual offending.

36He, since 20 February of this year, has seen you on 19 occasions.  He said that you attended all the scheduled appointments, each one of which has lasted an hour.  He said that you are currently attending him on a weekly basis.  He then goes on to say that self-reported symptoms, anxiety, depression, are severe and he also points out that you made consistent progress.  He said that you had reported abstaining from pornography for several months and it seems to me that that might have played a part in your descriptions of what supposed to have occurred in a couple of these offences, but anyway.

37You, apparently, are trying to take better care of yourself.  What he did say,

'Mr Napier has engaged thoroughly in the offence specific components of treatment, has made solid progress towards his treatment goals. At the commencement of treatment Mr Napier had initially expressed a rose tinted view of his relationship with the complainant.  In the context of treatment he's been able to identify and challenge distortions in his thought process and has gradually developed a more mature view of his offending, which emphasises the inappropriate and abusive nature of his behaviour towards the complainant and his personal responsibility for his decisions and behaviour.

'Mr Napier's most recent counselling session was focused on enhancing empathy for the victim of his offending, which was assisted by a discussion of the victim impact statement.  During the discussion there was no indication of the cognitive distortions that had been present during the early stages of treatment, suggesting that Mr Napier is developing a realistic view of his offending and its impact on the victim.  Mr Napier has expressed a commitment to continue treatment and engage in proactive efforts to reduce his risk of reoffending.'

38The delay in one sense has given you the opportunity to rehabilitate yourself.  You have clearly made great steps towards achieving that rehabilitation. The risk of you reoffending, I would accept for these purposes, is low and I think that any form of incarceration, which is obviously what a youth justice centre order would be, would unnecessarily, in the overall set of circumstances, put at risk that rehabilitation.

39I think you would have an extremely difficulty time at the age of 20 in a youth justice centre.  I made it clear during the course of the plea I would not even consider the concept of gaol.  You may finally be starting to understand that you just simply cannot treat girls like you did.

40Accordingly, having had you assessed you have been found acceptable.  The community corrections order must reflect the seriousness of the offending.  It will be for three years.  It will be with conviction, which is a penalty in itself.

41I will be ordering that you, if you agree, have treatment and rehabilitation for mental health, treatment and rehabilitation programs to reduce reoffending and supervision.  I also direct that you will perform 200 hours of community work as a part of it.  I also direct that any hours that are spent on programs can be used as set off against those community work hours.

42As I have said, it is a very serious set of offending and I can assure you,
Mr Napier, that not going in was within a hair's breadth, it is as simple as that.  And if you breach this community corrections order you will probably be 21 and I will gaol you.  Do we understand each clearly?  Yes, all right.

43I have not gone through the details of the psychiatric and psychological assessments.  I will just direct that they remain on the court file and obviously I have taken them into account in this sentencing process.

44All right, you are aware of the consequences of that.  If you breach this by offending of this nature or you just do not complete it properly you have heard what I am going to do.  I will hear submissions from the barrister at the time, but that is what is going to happen.

45All right, yes, thank you.  6AAA, thank you.  Hang on.  Fifteen months youth justice.

46COUNSEL:  May it please the court.

47MR CAMERON:  Your Honour pleases.

‑ ‑ ‑