Director of Public Prosecutions v Newman (a pseudonym)
[2019] VCC 472
•8 April 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER NEWMAN (a pseudonym) |
---
| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 and 19 February 2019 |
| DATE OF SENTENCE: | 8 April 2019 |
| CASE MAY BE CITED AS: | DPP v Newman (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 472 |
REASONS FOR SENTENCE
---Subject: Sexual penetration child under 16 years; Exemption from Sex Offenders
Registration
Sentence: Good behaviour bond---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Goodenough | |
| For the Accused | Mr R. Thyssen |
HIS HONOUR:
1Just remain seated, Mr Newman,[1] if you would, thank you, whilst I make some remarks about the sentencing of you.
[1] Christopher Newman is a pseudonym.
2You have pleaded guilty to one charge of sexual penetration of a child under the age of 16 years. The charge that you have pleaded guilty to is a representative charge. That is to say it is representative of a number of occasions upon which it is alleged that you had sexual penetration with the victim between the dates alleged.
3The circumstances of your offending are contained in a prosecution opening dated 2 April 2019. That was read to the court by the prosecutor,
Mr Goodenough, and your counsel, Mr Thyssen, agreed that the summary forms a proper basis upon which I can proceed to pass sentence upon you.4The maximum penalty for the offence that you have pleaded guilty to is imprisonment for 15 years.
5At the time of your offending the complainant was aged between 14 and 16 years and you were aged between 18 and 19. The circumstances of your meeting are contained in the summary, and it is not necessary that I here repeat them. You formed a sexual relationship with the complainant which produced a child, a daughter. The circumstances of your offending were such that when you commenced a sexual relationship with the complainant you may not have been aware of her exact age but during the course of your relationship you certainly did and you continued to have a sexual relationship with her in the knowledge that she was under the age of 16 years.
6The relationship between you and the complainant is now well and truly at an end and it has been some time since you have seen your daughter. You were charged with other offences against the complainant and her sister and those matters were heard in the County Court at Ballarat in February of this year and you were acquitted of all charges. You at all times indicated that you would plead guilty to the charge that I must sentence you for. You indicated that you would do so at committal mention and I treat you as having pleaded guilty to the charge at an early time.
7You have no relevant prior convictions for this offending and there are no subsequent matters alleged against you.
8You are now 30 years of age, having been born on 29 April 1988. So this offending occurred approximately 12, possibly more, years ago. You have moved on with your life, having been educated locally in Ballarat to Year 12 and you have been gainfully employed ever since. You remain employed in the carpet industry as a carpet layer. You have a good work history. You have a relationship with a woman with whom you are presently separated. I am told because of the recent tensions caused by the proceedings in Ballarat which resulted in a trial which I referred to earlier. You hope to resume your relationship with your partner with whom you have two children aged three and five.
9Your partner has her own difficulties having been diagnosed with leukemia for which she is currently undergoing treatment. You play a very active role in the upbringing of your children with your new partner, both in the care and management of the children and taking care of the financial responsibilities for both your partner and the children. I received in evidence, which I marked as Exhibit 2, a number of references as to your character and hard work. Those references speak for themselves.
10Mr Thyssen, your counsel, has urged me in the circumstances because of your age, your family responsibilities, your plea of guilty, your lack of any relevant prior convictions, not to impose a sentence that involves a term of imprisonment. Mr Goodenough, the learned prosecutor, submits on behalf of the Director that a suspended sentence is wholly within range.
11This offending is prevalent, unfortunately, and it is serious because it does impact on victims or complainants in a variety of ways. Here there has been a victim impact statement filed, much of which is irrelevant, but what does come through is that the victim has been somewhat psychologically affected by these events which happened earlier in her life. In passing sentence I have taken the victim impact statement into account so far as it is relevant, as I must.
12In my view, the purpose of sentencing here can be achieved by the making of a disposition which does not involve you being imprisoned. The purposes of sentencing here are general deterrence and denunciation and just punishment. The sentence that I propose, I think, meets all of these requirements.
13On the charge of sexual penetration of a child under the age of 16 years you are convicted and sentenced to a term of imprisonment of 12 months. That sentence will be wholly suspended with an operational period of two years. The purpose of imposing a term of imprisonment is to reflect the seriousness of your offending but the purpose of suspending the sentence wholly for a period of two years is to give you the opportunity to show to the court and to the community that you can be of good behaviour for a period of two years.
14Now, Mr Newman, the effect of what I have done is that there will be a conviction recorded against you but if you are of good behaviour and do not commit any offence punishable by a term of imprisonment for the next two years that will be the end of the matter. Do you understand?
15ACCUSED: Yes, sir.
16HIS HONOUR: Have a seat. Now, the offence for which you have been committed is a Category 2 offence under the Sex Offenders Registration Act.
17MR GOODENOUGH: Category 1, I think, Your Honour.
18HIS HONOUR: Is it?
19MR GOODENOUGH: Yes, sexual penetration of a child, Your Honour.
20HIS HONOUR: Sorry, Category 1 offence.
21MR GOODENOUGH: Yes.
22HIS HONOUR: Under the Sex Offenders Registration Act with requirements that you comply with that Act for a period of 15 years. There has been made on your behalf by your legal advisers an application for exemption from the making of such an order, and that is dated 18 March 2019 and is supported by an affidavit of you sworn on that day. That affidavit sets out a number of things relevant to you and speaks for itself, and I will not repeat it.
23This offending occurred when you were aged 18 or 19. The court does have the power in s.11A of the Sex Offenders Registration Act 2004 to exempt you from registration. You fall within s.11A of the Act to make an application because at the time of the commission of the offence for which you have been convicted you were 18 or 19 years of age and you were not more than 19 years of age. That is all conceded. None of the matters in s.11A(2) have application here which would prevent you from making an application.
24On the hearing of such an application the court may declare that you are not a registrable offender in respect of a specified offence. If the court is satisfied on the balance of probabilities that at all times during the commission of the specified offence the victim is of or over the age of 14 years and the applicant poses no risk or a low risk to the sexual safety of one or more persons or the community, having regard to the seriousness of the specified offence and the ages of the applicant and the victim, etc.
25Having regard to all of the circumstances here I am satisfied that you are a low risk of reoffending again in this way. Accordingly your application for exemption from registration as a registered offender under the Sex Offenders Registration Act 2004 is granted and I declare that you be exempt from registration.
26Are the any other matters?
27MR GOODENOUGH: There was the application for a forensic sample.
28HIS HONOUR: Yes. The application for the forensic sample. What do you say about that, Mr Thyssen?
29MR THYSSEN: Look, it is unlikely that it would be ever needed in the future, Your Honour, but really it is a matter for Your Honour. It is the purpose behind the Act obviously but on the basis of Your Honour's finding vis a vis the low risk but I understand the nature of the purpose of the legislation. It would not be opposed as such but I am not jumping for joy about having the registration - sorry, the DNA taken.
30HIS HONOUR: Why should I make this order, Mr Goodenough?
31MR GOODENOUGH: Your Honour, the application is made on the basis of the seriousness of the offence. That is the basis upon which it is relied upon.
32HIS HONOUR: Yes.
33MR GOODENOUGH: The points my friend makes are perfectly valid but that is the basis, that the offending is objectively a serious one and that is the submission, Your Honour.
34HIS HONOUR: Yes. For the purposes of s.6AAA of the Sentencing Act 1991 I say that had it not been for your plea of guilty to the charge I would have imposed a term of imprisonment of three years and I would have ordered that you serve a minimum term of two years before being eligible for release on parole.
35The prosecution makes application for an order pursuant to s.464ZF of the Act 1958 for the taking of a forensic sample from your body. The application is not formally opposed. The court on hearing an application must take into account the seriousness of the circumstances of the forensic sample offence in determining whether to make the order and must be satisfied that in all the circumstances the making of the order is justified. Mr Goodenough submits that this application should be granted having regard to the seriousness of the circumstances of this offending. Had this just been a one off charge I would not have made the order sought, but having regard to the fact that it is a representative charge that you have pleaded guilty to, and the offending is said to have occurred over approximately the two year period on a number of occasions, I think that raises the level of seriousness to a degree where there application should be granted. Where does your client live?
36MR THYSSEN: Tarneit. So that would be presumably Werribee Police Station would be probably the closest.
37HIS HONOUR: Thank you. The discretion required by s.464ZF(8) must be exercised judicially. In my view having regard to the fact that the application is not opposed and having regard to the fact that it is a representative charge to which you have pleaded guilty to, the level or seriousness, as I say, is raised and accordingly I will make the order, the effect of which is, Mr Newman, that you will have to present to the Werribee Police Station within, I think it is 28 days, and they will take a sample from you which is really just a swab from your mouth. You understand?
38ACCUSED: Yes, sir.
39HIS HONOUR: And the results of that will be placed on the DNA database. Do you understand that?
40ACCUSED: Yes, sir.
41HIS HONOUR: I should also add that if you do not appear then the police can come to you and use reasonable force to obtain such a sample. Very well, I have signed that order.
42MR THYSSEN: If it please the court.
43HIS HONOUR: You can come out of the dock area if you would, please,
Mr Newman. Just come and take a seat behind Mr Thyssen there.
Mr Newman, on the rising of the court you are free to leave. You understand?- - -
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