Director of Public Prosecutions v Neal

[2014] VCC 1862

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 14-00593

DIRECTOR OF PUBLIC PROSECUTIONS

v

BADEN PETER NEAL

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	9 October 2014
CASE MAY BE CITED AS:	DPP v NEAL
MEDIUM NEUTRAL CITATION:	[2014] VCC 1862

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. D. O'Doherty	Office of Public Prosecutions
For the Offender	Mr. C. Farrington

HIS HONOUR: 

1Baden Peter Neal, you have pleaded guilty to one charge of indecent act with a child under the age of 16, and four charges of sexual penetration of a child under the age of 16.  They are all representative charges, and carry a maximum penalty of 10 years' imprisonment.  Being representative charges, you do not get extra for each.  It is simply not to be regarded as being in isolation, but from what I will describe in a moment, that is self-explanatory.

2Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  I must advise you that should you refuse to comply with that order, the police may use reasonable force to take such a sample from you and your counsel will explain to you how to go about that.  That order is made and handed down. 

3The situation here is that you are now 20 years of age.  You were 17 years of age while the offending took place over a period of some six months.  Had you been charged at that time, it would have been dealt with in the Children's Court, and there would have been a significant number of more beneficial dispositions, I suspect, that could have been put in place for you.  In any event, I now have to sentence you as an adult, but I take very much into account that that has been lost.  That is because of what is legally described as a delay in the matter being reported, and that incorporates no criticism at all of the complainant. 

4Your plea of guilty was to a settled indictment and is accompanied by appropriate remorse.  You must also, of course, get the utilitarian benefit of that plea of guilty, not only in furthering the course of justice, but in saving the complainant from having to give evidence, which can be an extremely humiliating experience.

5The offending can be described very briefly.  Between May and November of 2011, you were in a relationship with a young man who was 13 to 14 years old.  You, as I have said, were 17.  You initially befriended him on Facebook and you then commenced an on-line relationship which utilised Skype for sexual activity, including the complainant masturbating himself in front of the camera.  You and the complainant then progressed to meeting each other on a regular basis during which you would engage in mutual masturbation and consensual oral and anal penetrative sex of you.  That went on, as I have said, for about six months.  What I will do is, I will simply ensure that the Crown opening remains on the court file, so that anyone with a genuine interest can read it.  I will, on reflection, no annexe it to my sentencing remarks because it discloses the identity of the complainant, but it will remain on the court file. 

6

The relationship ended when the complainant's mother discovered used condoms in his bedroom and realised what was going on.  I accept what I am told, that you were seen as a pair,  or as partners in a sense that the adults in your lives were not aware that the sexual activity was taking place.  As

Dr Walton points out, somewhat ironically, you were discovered because, in fact, condoms were found, by reason of you having practised safe-sex.  In any event, certain consequences have to flow from this. 

7I have read the victim impact statement, and that victim impact statement pretty clearly sets out why you cannot have age-inappropriate relationships and why they are illegal.  It is damaging to young people to be sexually forced to grow up way before they need to.  I appreciate that the age difference between you was not that great, but nevertheless, the offending has to be regarded as serious.  One consequence is that you will be placed on the Sex Offender's Register and I advise you that that be entered in the records of the court, and that the reporting conditions will be for seven and a half years.  You will now be given some documentation in relation to that. 

8The situation is here, that the Crown have agreed that a non-custodial sentence is within range.  I make it very clear that had you been say, for example, 25 or older, you would have received a significant custodial sentence for this, but the fact of the matter is that you are still a youthful offender, and were a very youthful offender at the time that it all occurred. 

9Tendered on your behalf were reports from Ms Carla Lechner, a psychologist, and Dr Lester Walton, a psychiatrist, and I have had the benefit of reading those reports.  I do not need to go into great detail about it, save to say this.  You are not paedophilic, you do not pose a danger to other young people, and you have quite serious problems of your own.  You have post-traumatic stress disorder, with symptoms thereof, as a result of a sexual assault upon yourself when you were about 15. 

10You are homosexual and have made that known at school, and particularly after the rape that occurred upon you, you were bullied and treated with scant regard.  You left school in Year 11, having completed Year 10.  You had a number of attempted jobs.  Your condition has been such that I accept that you have suffered from serious depression.  There have been episodes of self-harm and attempted self-harm, and it is to be hoped that as you mature, you will be able to get yourself out of that particular frame of mind. 

11

Dr Walton points out, that in his view, with you there is no real need for specific deterrence, insofar as a 17 year old is concerned, general deterrence obviously would not play as serious a part as they would with an adult person, and as I have said, there is no suggestion that you are paedophilic.  Because of the treatment that you received, essentially as a child,

Dr Walton opines that that may well have limited your maturity and made the difference in age less apparent to you. 

12Comfortingly, you have now got work available to you, and will be starting at an alpaca farm on Monday.  There will be relatively long hours involved in that employment, and you will not be receiving a particularly large remuneration.  I think that a Community Corrections Order, in this situation, is not appropriate and I do not want a circumstance where you are doing Community Corrections hours with a work gang.  I think you would be vulnerable, and I do not think that would be in anybody's interest.  It is clear from the reports of Dr Lechner and also Dr Walton, that you are aware of the difficulties that you have got, and are taking measures to deal with them.  In the overall, the prospects of your rehabilitation should be good I think, and the risk of your re-offending, certainly in this way, will be remote.

13Accordingly, I am prepared to grant a disposition of an adjourned undertaking.  In these particular circumstances where you do have subsequent matters, that undertaking will have to be, I think, with conviction which is a significant punishment in itself.  It will be adjourned for a period of 12 months.  The only special condition of that adjourned undertaking will be that you are to pay Beyond Blue the sum of $500 within six months of today's date, and a receipt for that payment is to be forwarded to my associate. 

14That adjourned undertaking is now entered into and you will be given a copy of it.  Just stand up for me for a moment, if you would, Mr Neal.  What I have given you is a -with conviction - because it has to be - adjourned undertaking.  It is for a year.  You have heard the Special Condition.  You have got to pay $500 to Beyond Blue within six months.  I make it very clear to you that if you offend again, or are caught offending, you get brought back before me for breach of it.  Now, I am not going to worried about something trivial, but just understand that if you - and I am not suggesting you would for a second - but if you get brought back for anything remotely like this, all bets are off.  All right. 

15ACCUSED:  Yes.

16HIS HONOUR:  Nothing else I need to do.

17MR O'DOHERTY:  No, Your Honour.

18MR FARRINGTON:  No, Your Honour.

19HIS HONOUR:  All right, nothing else I need to do?  Thanks, gentlemen. 

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