Director of Public Prosecutions v Nash
[2011] VCC 2013
•27 October 2011
105
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01360
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATHEW COLIN NASH |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 October 2011 | |
DATE OF SENTENCE: | 27 October 2011 | |
CASE MAY BE CITED AS: | DPP v. Nash | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 2013 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty - Indecent act and Sexual Penetration of a child under 16 years - Immature offender with no priors – Remorse -Issue of consent/lack of consent
Cases: Clarkson v R; EJA v R [2011] VSCA 157
Sentence:Two years’ imprisonment wholly suspended for three years – Ancillary orders – Sex Offender Registration – s.6AAA Sentencing Act 1991
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms N. Warda (Plea) Mr R. Mallia (Sentence) | Solicitor for Office Public Prosecutions |
| For the Accused | Mr P. Randles (Plea) Mr T. Cooper (Sentence) | Peter Randles Solicitors |
The victim’s name has not be used in these sentencing remarks not out of any disrespect, but in order to maintain her privacy. Other persons’ names have been initialised to also maintain the anonymity of the victim.
HER HONOUR:
1
Mathew Colin Nash, you have pleaded guilty to one charge of indecent act with a child under the age of 16 years and one charge of sexual penetration of a child under the age of 16 years. The maximum penalty in relation to Charge 1 is ten years whilst the maximum penalty in relation to Charge 2 is
10 years' imprisonment.
2 As you will appreciate from the maximum penalties, the offences which you have committed are regarded as most serious.
3 Your offending was opened as follows:
Background
You and the victim were known to one another; you were initially introduced by the victim’s brother a number of months before the incident. The victim and you had previously socialised together, either with friends or on your own.[1]
[1]VATE Transcript – Q&A’s 20 – 24 inclusive pg 30.
4 At the time of the offences, the victim was aged 15 (born on 8 February 1995), and she had been born with the condition known as Osteogenisis Imperfecta Type 1, which is a brittle bone condition and is monitored by the Royal Children’s Hospital. She was also born with an underdeveloped right hand. She had been diagnosed with ADHD.[2] You were aged 22 at the time of the offences (born on 25 August 1988).[3]
Circumstances of the Offences
[2] Dr. Talia Maayan, pg 5 of report Pg 85 of HUB;
[3]Record of Interview (ROI) Transcript – Q&A 6 pg 116.
5 On Sunday 5 September 2010, the victim asked you, via Facebook, if you could pick her up and take her to McDonalds. You agreed and attended at the victim’s address at about 2.00 pm that day. The victim then got into your car and you drove her to McDonald’s in Sunbury to get something to eat.[4]
[4] VATE Transcript – Q&A 10 – pg 27 HUB
6 After ordering a meal, you asked the victim if she wanted to go for a drive, and she agreed. You then drove to a location but you drove away from this when you noticed that there was another vehicle parked nearby. You then drove to the end of Fox Hollow Drive, Sunbury, which is a dead end that backs onto vacant land. [5]
[5]VATE Transcript – Q&A 10 pg 27 HUB
7 Whilst parked at Fox Hollow Drive, you both remained seated in your respective seats in your car – you in the driver’s seat, and the victim in the front passenger seat. You both spoke for a while and you then told the victim that she was “really cute”, to which the victim responded “okay”. You then leant over and hugged the victim; she reciprocated with a hug in return. You then tried to kiss her and she pulled away saying “No”.[6]
[6]Ibid – Q&A’s 63-64 inclusive pg 35 HUB
8 You, whilst sitting in the driver’s seat, pulled your chair back, giving yourself more leg room. You then slowly got closer to the victim, and climbed over to her side, ending up on the seat with her. The victim was sitting on the seat and you were positioned on top of her; you were facing one another. The victim told you that she did not want to do anything, to which you replied, “Don’t worry, no one will find out.”[7]
[7]Ibid – Q&A’s 65-71 inclusive pg 35-36 inclusive of HUB
9 You positioned yourself on her thighs across her legs; this hurt the victim because of the pressure on her legs. You started rubbing her leg and then put your hands down her pants and underwear, rubbing her vagina, trying to kiss her at the same time. This gives rise to Charge 1.
10 You then took your hand out, got up, leant over and started taking her pants off.[8]
[8]Ibid – Q&A’s 73,124,135, 140
11 You moved yourself into position where you lowered your pants to your knees and put a condom on.
12 You then pulled down the pants the victim was wearing and the victim told you, “I don’t want to do anything” a number of times, according to the victim.[9]
[9]Ibid – Q&A’s 72-83 inclusive pgs. 36-38 HUB
13 You laid on her and pushed the lever for the seat down. You then inserted your penis into her vagina and after a short time ejaculated into the condom. This gives rise to Charge 2.
14 You then got up, got back into the front driver’s seat and threw the used condom out the window onto the ground.[10]
[10]Ibid – Q&A’s 107, 154, 126, 159
15 You drove the victim back to her address. When the victim arrived home, she immediately went to her bedroom and cried. She then logged onto her Facebook account, and told you how it made her feel; that you should not have done it, and that you had heard her say ‘No’.[11]
[11]Ibid – Q&A’s 167 pg 50 HUB
16 Later that afternoon she received a telephone call from a friend, and it was during that telephone conversation that she disclosed to her friend what had occurred. The following morning the victim disclosed to her mother and her mother’s partner the full details of what had taken place.[12]
[12]Ibid – Q&A’s 170-202 inclusive pg. 50-54 inclusive of HUB
17 On Tuesday 7 September 2010, you were arrested and taken to the Sunbury Police Station. You took part in a record of interview. During the record of interview, you provided a different version of events than that of the victim. Your account accorded generally with the account given by the victim, except that you said that the sexual activity was consensual.
18 In the course of the record of interview you made a number of concessions and admissions:-
- You admitted to being with the victim;
- You admitted hugging and kissing her but said it was consensual;
- You admitted to moving on top of the victim and stated you straddled her legs;
- You said that she took her pants off and so at that stage you took out a condom;
- You stated that the victim had not said “No” and nor had she told you that she did not want anything to happen;
- You said that you put the condom on;
- You denied ever saying to the victim “Don’t worry, no one will find out”;
- You also told police that when you saw the victim’s message on Facebook, you were angry and disappointed in yourself, because you are against people forcing or bashing girls;
- You admitted to knowing she was aged 15 at the time; and
- You also admitted to knowing that it was illegal to have sex with a person aged 16 and under.
19 Your offending occurred in the context of the complainant being a friend and younger sister of a male who was your close friend. You knew very well that she was fifteen years old and that you ought not engage in sexual activities with her. Moreover, it was not as if you were in some kind of relationship with her, beyond being friends; but notwithstanding this, you chose to act in this most irresponsible and unrestrained fashion. You were twenty-two years old at the time of the offences and the complainant was 15½ years old. However, you ignored any sense of responsibility or restraint on this occasion, putting your own needs ahead of any other consideration. Although the circumstances of your offending are not the worst that comes before the Court, your conduct is serious enough and is deserving of just punishment.
20 Further, your conduct must be denounced and a clear message must be sent to the community that they cannot behave as you have. This means that the sentence which I impose upon you should be such that it acts as a deterrent to others, who may be tempted to behave as you have, from engaging in such irresponsible and damaging conduct.
21 The impact to the victim and to her mother has been most significant. The victim indicates that she has great difficulty trusting people now, having related to you as one of her older brother’s friends. She says that she never thought you would take advantage of her in the way that you did, and that she is no longer able to attend her school as she has been subjected to teasing and bullying. Bullying extends to her treatment on weekends and over the internet. She says that she no longer has any friends, except for one person, and feels that she is no longer able to talk with others with whom she used to attend school, in the way that she used to relate to them. She has not been able to finish Year 10, with the result that her education is suffering.
22 Because she lives in a fairly close-knit community, she is unable to attend alternative schools as it appears that others are aware of your offences. She has had to travel out of Sunbury using public transport, which makes her very anxious.
23 She is anxious about going out by herself she says and her older brother does not really talk to her any more. She ran away from home after the offences on a number of occasions, but as she had nowhere to stay, she returned home after a few days on each of these occasions.
24 She says that she keeps thinking about what you did to her, which makes her cross, and she still feels anger towards you, which she takes out on members of her family. She continues to see a counsellor to cope with what you have done, but this is difficult because of trust issues that she now has.
25 She endures sleeplessness and difficulty in her relationship with her father as a result of the offences and she says that you have affected her so much by doing what you did to her.
26 Ms W, who is the mother of the victim, says that she is still affected by the crimes that you have committed; she is affected emotionally and in numerous other ways. Ms W has the care of three autistic children and also must care for her daughter, whose mental state has been dramatically affected by your offending. She speaks about the exhausting impact that your offending has caused her because of the ripple effect which emanates from the victim’s changed behaviour. Her daughter's behaviour has had a poor impact on her other children. She says that the victim’s brothers have not dealt with the change in their sister, change being particularly difficult for children who suffer from autism.
27 As a result, Ms W is exhausted in trying to cope with these most demanding and upsetting family dynamics. Her oldest son is also suffering from the fact that he feels he cannot trust anyone, and Ms W is assisting him in rebuilding the good relationship he had with his sister by seeking outside advice. The complainant's mother is struggling to cope with the highly stressful and demanding situation at home, which you have triggered, as well as struggling to continue working. Her emotional wellbeing has been severely impacted by your offending, and she says that she hopes you will think about what you have done and learn from it by hearing the way that you have affected her, and the way you have affected the complainant and her family.
28 You have no prior convictions and no subsequent matters pending. You have a most caring and supportive family and have a girlfriend who is twenty years old, with whom you have been in a relationship for some time. You work at Bunnings with your father and sister and would appear to have a very good work ethic.
29 You pleaded guilty at the first opportunity, which was before the committal mention. You made full and frank admissions in respect of the offences to which you now plead guilty. In this regard, I note that there is a conflict between what the complainant says she said at the time of your offending, in terms of not wanting to engage in sexual intercourse with you, and what you told police in this regard. The prosecution have indicated that the pleas to the offences were accepted on the basis that, although the complainant did express unwillingness to engage in sexual intercourse, they are not in a position to prove beyond reasonable doubt that you realised she was not consenting or might not be consenting insofar as the sexual penetration charge is concerned. Obviously, if you had realised this, then your offending would be far more serious and encapsulated by the offence of rape insofar as the act of sexual intercourse is concerned.
30 However, I sentence you on the basis that you did not appreciate that the complainant was, according to her, unwilling, but appear to have acknowledged that you became aware of this subsequently; as you said to the police that when you saw the victim’s message on Facebook, you became angry and disappointed in yourself as you are against people forcing or bashing girls.
31 In the circumstances, I am prepared to accept that your expressions of remorse, which are seen in the record of interview and expressed on your behalf by your mother, and signified by your plea of guilty, are genuine, and stand you in good stead for not reoffending. Further, your early plea of guilty entitles you to a significant discount in the sentence that you would otherwise receive as you have saved the witnesses, particularly the victim, the trauma and trouble of giving evidence in contested proceedings and you have also saved the community the time and expense of contesting the matters.
32 On your behalf, Mr Randles submitted that this was not a case where you and the complainant had had a “one night stand”, where nothing more than sexual gratification was involved. He submitted that your reaction to the allegations was honest and genuine in the context of having sexual relations with someone you genuinely cared for. You were angry and disappointed with yourself and it is evident that you are genuinely remorseful for your conduct, as I have already found.
33 In your record of interview, you said that the activity was consensual, and that the complainant did not say ‘no’ nor did she say any of the things that the Crown opened in this regard. Further, you said that it was the complainant who pulled her own pants down. On the other hand, you seem to subsequently accept that she was not consenting, when confronted with the complainant’s message on Facebook. To find that the complainant was not consenting would be to make a finding adverse to you. In order to do this, I would have to be satisfied of this beyond reasonable doubt. Mr Randles, on your behalf, said that you did not accept that the complainant had not consented. On the other hand, the plea opening relied upon by the Crown. which was agreed to by you, contains the complainant’s account and yours, which are at odds. In the circumstances, I am unable to be satisfied beyond reasonable doubt that the complainant was not consenting to the sexual activity; but I make no finding beyond this - that is, I am unable to find that she was consenting either. I simply do not sentence you on the basis that she was not consenting and so make no adverse finding against you in this regard.
34 Given my findings on this aspect, I do not think it necessary to embark on a detailed examination of the law concerning consent or otherwise in cases such as this, save to say that on my reading of Clarkson v R; EJA v R [2011] VSCA 157, the Court said that a child complainant’s consent in itself cannot be relied upon as a mitigating feature, but the circumstances in which it was given may make a crime such as yours more or less serious, depending on matters such as whether there was a power imbalance, a significant age disparity, grooming and the like. The Court also said that a proven lack of consent will significantly increase the offence gravity and culpability of the offender- for obvious reasons, I might add. Proof of the offender knowing or suspecting lack of consent would found a charge of rape, as I have already indicated. As the Court there said, a child’s consent must be seen in its proper context, or in all of the circumstances of the case in which it was given, and it is only then that a proper assessment of the gravity of the crime and the offender’s moral culpability can be made. [See paras 3-8; 34-66]
35 In your case, as I have indicated from my finding in this regard or lack of finding, there is no proven lack of consent on the part of the complainant and therefore, your case is not as grave as it otherwise might be. However, I stress, I do not find that the complainant did consent either.
36 A report from Mr Bernard Healey, dated 14 September 2011, was tendered on your behalf.
37 Mr Healey said that you appeared younger than your stated age, and in your communication and general demeanour, you were rather immature and more like an adolescent. Whilst I agree with the learned Prosecutor that this was an observation which seemed to have been made in passing by Mr Healey, it was an observation made by an experienced psychologist and tallies with the fact that you socialised with the complainant, not only with others but also on her own. I take this into account when evaluating the gap in ages between you and the complainant, as it would appear that your maturity level seems to have been more akin to the complainant’s.
38 I also take into account the fact that you suffer from severe epilepsy, which commenced in December 2008. Unfortunately, because of your difficulties with this condition, you were discharged from the army as medically unfit in November 2009. You had left school during Year 12 to commence a cabinet-making apprenticeship, however, the army was where you really wanted to be and your discharge from it caused you immense disappointment.
39 You are well supported in court, as you were on the plea, by your parents and current girlfriend. Your mother gave character evidence on your behalf and said that she had discussed the matters with you at some length. She said that you were devastated and distraught by what you had done and the charges that you faced. She said that you appreciate that you have broken the law and are very sorry to have done this.
40 She said that your last epileptic seizure was about two and a half weeks before the date of the plea hearing, and that an ambulance had to be called. Your epilepsy involves you blacking out completely, which is what appeared to have happened at the police station upon your arrest. As at the date of your plea you were to see a specialist in order to upgrade the management of your epileptic condition. Your mother said that everyone in the family has a very happy relationship, and that you are open and supportive of each other, which bodes well for your prospects of rehabilitation.
41 Mr Healey also refers to the fact that testing revealed that you are of just average intellectual capacity, and that personality testing indicated mild depression and anxiety, which was, inferentially, more serious at around the time of your arrest. You took anti-depressant medication for one month following your arrest and consulted a psychologist for two to three months. You do not abuse alcohol or take illicit drugs.
42 In all the circumstances, I find that your prospects of rehabilitation are excellent and that I need place only minimal weight on specific deterrence. I make this finding on the basis of your remorse, your pleas of guilty, the lack of prior or subsequent convictions, your firm work ethic and your strong family support. I need not be concerned with the protection of the community in your case, and I am confident that you will not commit further offences. Notwithstanding this, you must appreciate that the offending in which you did engage on this occasion was serious, and I must sentence you in a way that properly addresses all sentencing considerations.
43 Sexual penetration of a child under the age of 16 years is regarded as a ‘serious offence’ for the purposes of the Sentencing Act and therefore, in order to receive the benefit of a wholly suspended sentence, one must demonstrate exceptional circumstances and it must be in the interests of justice to impose such a sentence.
44 It was submitted by your counsel that notwithstanding that this offence is regarded as a serious offence for the purposes of the Sentencing Act, and determining whether you are a candidate for a wholly suspended sentence, that previous sentencing practice is still relevant to this issue. In that regard, he took me to numerous decisions of this court where wholly suspended sentences had been granted for offending of this type- that is, sexual penetration of a child under the age of 16 years. Of course, every situation is different. However, it appears to me that notwithstanding there is a new threshold of exceptional circumstances, I can have some regard to previous sentencing practice in matters of this kind. I did not hear the learned prosecutor to argue otherwise. I do have regard to this insofar as I can, but bearing in mind that Parliament has seen fit to impose a hurdle in respect of the offence in question, which must be overcome by you before a wholly suspended sentence can be imposed.
45 In your case, a combination of factors were put forward as satisfying the threshold of exceptional circumstances. They were relied upon in combination as follows:
(1) that your offending was a single episode of short duration;
(2) that there were no aggravating circumstances;
(3)that you made significant admissions to the police shortly after the offending;
(4)that you are genuinely remorseful as demonstrated by your early plea, admissions to the police, and the evidence given by your mother;
(5)that you have “excellent” prospects of rehabilitation;
(6)that your level of maturity was more akin to that of a teenager’s notwithstanding that you were twenty-two years old at the time of your offending; and
(7)the fact that you have a severe condition of epilepsy which would make time in gaol for you more difficult than for someone without this condition.
46 Ms Warda, for the Crown, referred me to a Court of Appeal decision of R v Khem [2008] VSCA 136, which was said by the learned prosecutor to be a recent decision which was more aligned to yours than other recent cases. However, in that case the complainant was 14 years old and the offender was 26; hence there was a greater age gap and the complainant was younger than in your case, as well as the fact that the offender was significantly older than you. In that case, the Appellant, who was a family friend and staying as a guest at the family home, stole into the victim’s bedroom when she was asleep. He performed a number of sexual acts upon her, which resulted in a representative count of indecent act, and he had also pleaded guilty to sexual penetration of a child under the age of 16, which was on the basis of him digitally penetrating the complainant. He was also dealt with for attempted penetration as he had attempted to insert his penis into her vagina. His wrongdoing was interrupted by the victim’s older brother coming into the room. In that case, the failure to wear a condom in respect of the attempted sexual penetration was an aggravating feature, which I note is not present in your case. It appears in that case that the offender had committed the acts in question, knowing that the victim, who was asleep, was not consenting, notwithstanding that he was affected by alcohol; this aspect did not really feature in the Court of Appeal judgement, but is evident from the facts of that case. The Court of Appeal dismissed an appeal against a sentence of three and a half years with a non-parole period of two years and three months' imprisonment. It is evident from the facts in that case, that it differed in significant respects from yours, and constitutes more serious offending than that in which you engaged.
47 Ms Warda also referred me to a number of Court of Appeal decisions from 2006 onwards and there was some discussion in relation to the matter of DPP v Adams, in which I previously sentenced an offender to a community based order for the offence of sexual penetration of a child under the age of 16 years, where such a disposition was actually volunteered by the Crown, on instructions from the head of the Sex Offences Unit. In that case, the offender was 18 years old and the complainant was 13 years old; but the circumstances did vary a good deal from those in your case. It would appear that the Crown had taken the view that, notwithstanding that the case was a serious offence for the purposes of the Sentencing Act, a community based order was warranted.
48 Cases such as this and R v Khem, as well as the others referred to in the course of submissions on the hearing of the plea, only serve to demonstrate that every case is different and deserving of separate consideration, whilst having regard to sentencing practice and maximum penalties, and giving appropriate weight to all relevant sentencing principles.
49 In your case, the learned prosecutor submitted that a range of between two to four years' imprisonment as a head sentence with a non-parole period of one to two years' imprisonment was appropriate. She submitted that because of the seriousness of the offending and the vulnerability of the victim, an immediate term was warranted and exceptional circumstances were not made out.
50 In reply, Mr Randles relied on the factors previously referred to and submitted that in your case a wholly suspended sentence was appropriate.
51 Mr Nash, you are still a young man and you have acted most irresponsibly on this occasion, which I understand you acknowledge. However, I am satisfied that you have demonstrated exceptional circumstances by way of a combination of factors which your counsel has relied upon on your behalf. But I do not regard an absence of aggravating features as a valid part of this combination. Further, I do regard it as being in the interests of justice that a wholly suspended sentence be imposed in your case, as in all of the circumstances, I see no legitimate utility in requiring you to serve a gaol term. Therefore, you will be given the opportunity to behave in a more responsible manner in future but if you fail to do so, you will inevitably be at grave risk of going to gaol for further offending of this type or any other serious type, for that matter.
52 Would you please stand up, Mr Nash?
53 In respect of Charge 1, you are convicted and sentenced to eight months' imprisonment.
54 In respect of Charge 2, you are convicted and sentenced to two years' imprisonment, to be served concurrently with the sentence which I impose on Charge 1. This makes a total effective sentence of two years' imprisonment, but I order that this period be wholly suspended for a period of three years.
55 This means that if you commit another criminal offence which is punishable by imprisonment within the next three years, then unless you can show exceptional circumstances as to why it would be unjust to do so, you will be required to serve the two years' imprisonment which I have wholly suspended today, as well as facing sentenced for the further offence or offences which have breached the wholly suspended sentence.
56 If not for your pleas of guilty, I would have sentenced you to an immediate term of three years' imprisonment with a non-parole period of two years.
Ancillary orders
57 I make a disposal order, which is not opposed by you, in the terms set out in the document provided by the Crown.
58 Further, I make a retention order for the forensic sample previously obtained, which is not opposed by you.
59 I order that you be registered on the sex offenders register for a period of fifteen years. You must report your personal details to the Chief Commissioner of Police annually for the next 15 years. You must first do so, that is, report, within seven days of today's date at the police station nearest to your home. Details in writing of these reporting conditions will be served shortly upon you by my associate, Ms Hammond. I will ask your counsel to help you in attending to an acknowledgement of that notice and have you sign it.
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