Director of Public Prosecutions v Newbold (a Pseudonym)
[2019] VCC 1016
•4 July 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LINCOLN NEWBOLD (A PSEUDONYM) |
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| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 May 2019 |
| DATE OF SENTENCE: | 4 July 2019 |
| CASE MAY BE CITED AS: | DPP v Newbold (a Pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1016 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty – sexual penetration of a child under 16 –relationship between offender and victim – ostensible consent – victim fell pregnant – youthful offender – no prior convictions – good prospects of rehabilitation – general deterrence – specific deterrence
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:
Sentence:Total effective sentence of 110 days’ imprisonment and a 2 year community correction order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M Brown (Plea) Mr Z Menon (Sentence) | Solicitor for Public Prosecutions |
| For the Accused | Mr J McGarvie | Stary Norton Halphen |
HIS HONOUR:
1Lincoln Shaun Newbold,[1] you have pleaded guilty to one charge of sexual penetration of a child under 16 between 1 July 2016 and 30 July 2016 for which the maximum penalty is a term of imprisonment of 10 years. At the time of the offending, you were between the ages of 19 and 20 and your victim was 15 years and nine months.
[1] ‘Lincoln Shaun Newbold’ is a pseudonym.
2You have also pleaded guilty to a summary offence of failing to answer to your bail for which the maximum penalty is a term of imprisonment of two years.
3The circumstances of your offending can be briefly stated as follows.
4You met your victim through mutual friends when you were out socialising in the city. You initially spent time together socially before you began an intimate physical ‘relationship’ with the victim. Her parents were aware of the relationship but believed you to be either 16 or 17. Neither knew that the relationship was sexual in nature.
5In September 2016, tests indicated that your victim was pregnant. That pregnancy was terminated on 3 November 2016. Biological material identified you as the father. Your victim participated in a video audio recorded evidence statement where she told of having met you through one of her close friends, having asked her mum's permission to date you and described the relationship as completely fine. “Like it was like any normal relationship, ups and downs here and there but that's it, and then six months later, everything like that, things just started falling apart. Like it got too hard.”
6She told police that you were 19 years old when you started dating and that you turned 20 three months into that relationship, that she was 15 at the time and that you knew how old she was. The relationship became sexual in nature about a month after it had started. She told police that neither she nor you understood the significance of dating somebody older. Whilst she may not have appreciated it, I am quite satisfied that you did appreciate the significance of dating a child who was under the legal age of consent, because you hid that relationship from your parents.
7Your victim observed, “He never did anything wrong to me. He never hurt me, like he never abused me, he never sexually assaulted me, anything like that.” Your victim did not provide a victim impact statement. There is, however, a presumption of harm for offending of this kind. There is also the real prospect that at some time later in her life, your victim will appreciate the enormity of having had a termination at such a tender age, and you will not be around when that realisation strikes her.
8You were interviewed by police on 17 January 2017. You told police that you and she “hit it off” and that you started seeing each other. The relationship turned into a sexual relationship and that you knew the age of the victim and that “I dunno if I was making the right choice. I dunno if I should be doing it or not, yeah. I thought it would be all right. And I'd - you know - wasn't still - just didn't think it right through.” You lost count of how many times you and your victim had intercourse. You told police you felt bad for the victim about the pregnancy and you “believed the victim was smart enough to know what she was doing.”
9On 28 May 2018, you failed to attend court in answer to your bail in relation to these matters. You were arrested on 12 January 2019. Your plea commenced on 2 May 2019 and was adjourned to enable a full community correction assessment to be conducted. You were granted bail on 2 May 2019 and you have therefore spent 110 days in pre-sentence detention.
10You told the author of the extended pre-sentence community correction assessment report dated 24 May 2019 (Exhibit 8) that you “accepted full responsibility for your actions”, acknowledging that your behaviour was wrong and that you were aware of the potential consequences at the time. You knew that it was a mistake but you continued nonetheless. You knew that your family would reprimand you for your behaviour and so you kept the relationship a secret from them. You maintained that you were actively involved in decisions regarding the termination. After the pregnancy, you described the relationship as going downhill and once released from custody in 2017 on another subsequent matter, the relationship was over.
11I turn now to your personal circumstances.
12You were born in 1996 and you are now just shy of your 23rd birthday. The offending occurred around your 20th birthday.
13You were born in New Zealand and moved to Australia as a child. You did not enjoy your schooling and associated with negative peer groups. You left school after completing Year 9 and were unemployed for a period of time before you obtained casual work in construction.
14You began drinking at age 14 and started using cannabis from the age of 16. You have shown some insight into your drug use, stating that you were aware that you demonstrate anti-social behaviour when you are under the influence of drugs. You left your parents' home due to conflict and currently live with your new partner, who is in court today, with whom you have been in a relationship for 18 months. You describe her as a positive support and that she is encouraging of your abstinence from drugs as well as providing you with accommodation and financial assistance.
15Tendered on the plea were letters from your mother (Exhibit 3) and your partner (Exhibit 5). It is clear from both those references and from other references from friends and your partner's parents that you are loved, that you are valued and that you are supported. That all speaks clearly to your good qualities.
16Learned counsel for the prosecution submitted that general and specific deterrence were relevant sentencing considerations but conceded that arguably general deterrence has been addressed sufficiently by virtue of the time you have already spent in custody.
17Counsel reminded me of the presumption of harm that attends such offending, which presumption applies even absent a victim impact statement.
18Counsel accepted that your plea was entered at an early stage and that you had in place community support which was a protective factor and boded well for your rehabilitation.
19The prosecution very fairly reminded me of the importance of rehabilitation of an offender as young as you.
20Mr McGarvie on your behalf, whilst accepting the serious nature of the offending, submitted that general and specific deterrence and protection of the community must be weighed against your prospects for rehabilitation and your youth. I of course accept that submission.
21Your plea was entered at an early opportunity. It brings with it not only the utilitarian benefit of saving the community the time and cost of a trial but also of sparing your victim from the trauma and ordeal of having to give evidence about intimate matters. Mr McGarvie submitted your plea should also be viewed as indicative of your remorse. I of course give weight to that plea. I accept that you are developing an insight into the wrongfulness of your actions which hopefully will lead to a change in your behaviour which, in the view of this court, is perhaps the best and most concrete demonstration of remorse.
22Mr McGarvie submitted that the time you had already served in pre-sentence detention was a sufficient punishment and that the court could entertain a disposition that enabled you to remain at liberty and to work upon your rehabilitation.
23He urged upon me the fact that you have remained drug-free whilst in custody and since your arrest and that you had already began work on your rehabilitation; that you are supported; that you have the offer of firm employment.
24Mr McGarvie's ultimate submission was that I could deal with your offending by means of a combination sentence, that is to say, by placing you upon a community correction order which, in addition to the time already served, would sufficiently address all the relevant sentencing purposes.
25Mr Newbold, your victim, despite her apparent sexual maturity, was in law a child, and sexual offending against children will always be viewed as serious offending. There is an absolute prohibition upon sexual activity with a child, and that absolute prohibition is founded upon a presumption of harm. The prohibition is intended to protect children from the harm which is presumed to be caused to them by premature sexual activity, that is, sexual activity before the age when a child can give meaningful consent. It is indeed for this reason that a child's consent is more accurately referred to as apparent or ostensible consent.
26Sexual activity between adults and a person under the age of 16 can have a lasting impact upon the emotional and psychological wellbeing of the victims of such offending. As I have already observed, your victim at some stage later in her life will have to deal with the enormity of having had a termination at such a tender age.
27This absolute prohibition on sexual activity with a child has two purposes. The first is to protect children from the harm caused by premature sexual activity, and to that end, to protect them from their own immaturity. On behalf of the community, Parliament has decided that those under 16 cannot meaningfully consent to sexual activity even if they are subjectively attracted to the idea of participating in such activity. Secondly, in order to advance the protection of children, the prohibition is designed to deter those who might contemplate sexual activity with a person under the age of 16. Your victim gave consent, but of itself, that is not, and indeed can never be a mitigating factor. Nor can that consent be considered in isolation, because a court will need to investigate the circumstances in which that consent came to be given. In assessing the gravity of offending, the court's attention must be focused not upon the consent as such but rather upon the circumstances whereby the consent came to be given.
28In this regard, you met your victim through mutual friends. I am told you hit it off, that there was an attraction, what is called a chemistry between you. You began to socialise and I accept, perhaps not unsurprisingly given your relative youth, that social relationship quickly turned into an intimate sexual relationship. There was thus an absence of those aggravating features which are so often found in cases whereby children are sexually exploited. You were not in a position of authority that you could exploit. You were not in a position of trust that you abused. The age disparity between you and your victim of four years was certainly not as great as is so often encountered in these courts. There seems to have been genuine affection between you. However, you were, albeit young, the adult and your victim was a child. You had repeated penile vaginal intercourse with a child without protection. Clearly, that was because you could not be bothered putting on a condom, maybe because you do not like it or you prefer sex without. By doing so, you put your own desires before the interests of your victim. Such unprotected sex is itself an aggravating feature due to the risk of sexually transmitted disease but also due to the risk of unwanted pregnancy. That was precisely the risk that, sadly for your victim, eventuated in this case. The decision to terminate could not have been easy for your victim or her family and you alone are responsible. You knew what you were doing was wrong and that is why, I find, you hid the matter from your family.
29In sentencing you, I must have regard to a range of different factors. I must give effect to the principles of general and specific deterrence, that is, I must send a message from this court to try and deter others from behaving as you did. I have to deter you from any repeat of this behaviour. I also have to express the community's denunciation of your conduct. However, I should also promote if possible your rehabilitation. I must take into account the presumed effect that your crime has had upon your victim and I must have regard to current sentencing practices as determined and described by the Court of Appeal for the kind of offence you have committed and the maximum penalties imposed by Parliament. The maximum penalty is a term of imprisonment of 10 years' imprisonment which gives a clear indication of how seriously Parliament views this matter. In short, I must try to balance your personal circumstances with the circumstances of your offending. I am required by law to pass no longer a sentence than is appropriate in all of the circumstances.
30General and specific deterrence will always be relevant sentencing purposes in offences against children. However, I accept these must be tempered by your youth and the need for your rehabilitation. Having regard to all the matters urged upon me on your behalf and to the full and detailed contents of the pre-sentence community corrections assessment report, I am satisfied that I can pass a sentence which enables you to keep your liberty today.
31If you could stand up please, Mr Newbold.
32On the charge of sexual penetration of a child under 16, you are sentenced to a term of imprisonment of 110 days and to a community correction order of two years' duration.
33Mr McGarvie will explain to you the core conditions of a community correction order, but let me just make it clear that one core condition is you do not commit any offence punishable by a term of imprisonment. If an offence comes to the attention of Corrections, they will breach you and you will be back in front of me. I want you to succeed. I am not setting you up to fail, but the order is intended to be punitive.
34You will be subject to the following conditions:
i.Supervision;
ii.300 hours' unpaid community work;
iii.Assessment and treatment for drug dependency;
iv.Assessment and treatment for alcohol dependency;
v.Assessment for suitability for any program that addresses factors relating to your offending;
vi.Curfew from 9 pm to 5 am for a period of six months;
vii.A condition of residence, at your partner’s address. If your continued living with your partner is no longer possible for whatever reason, then you will obviously be in touch with Corrections and they will bring it to the court's attention.
35Mr Newbold, do you consent to being placed on the community correction order?
36ACCUSED: Yes.
37HIS HONOUR: Ms Murphy is going to bring some documents for you to sign in relation to the community correction order.
38On the summary charge of breach of condition of bail, you are sentenced to a term of imprisonment of one month. There is no order for cumulation.
39By virtue of your offending, you are now a registrable offender under the provisions of the Sex Offenders Registration Act 2004 for 15 years. I have no discretion in relation to the period of reporting. The obligations are serious. Can I make it very clear that those who breach their obligations are prosecuted and the courts view those breaches very seriously. If you are prosecuted, you will be returning to prison.
40The documents that have been taken for you to sign are in relation to your consent to the community correction order and the conditions attached, and a document acknowledging that you have been told of your reporting obligations under the Sex Offenders Registration Act 2004.
41Pursuant to s.6AAA of the Sentencing Act 1991, had you not pleaded guilty, you would have been sentenced to a term of imprisonment of 15 months.
42Any other matters?
43MR MENON: No, Your Honour.
44MR McGARVIE: No, Your Honour.
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