Director of Public Prosecutions v O’Neal (a pseudonym)
[2024] VCC 410
•5 April 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| COHEN O’NEAL (a pseudonym) |
---
| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 February 2024 |
| DATE OF SENTENCE: | 4 & 5 April 2024 |
| CASE MAY BE CITED AS: | DPP v O’Neal (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2024] VCC 410 |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Charges of sexual penetration of a child under 16 and a charge of sexual activity in the presence of a child under 16 – early plea of guilty – no criminal history – standard sentence offences – serious sex offender provisions – youthful offender – remorse – good prospects of rehabilitation – Verdins – life reporting period of the Sex Offenders Registration Act 2004.
Legislation Cited: Sentencing Act 1991 ss 2A, 5(1), 5A(1)(b), 5B(2)(a), 5A(3), Sex Offenders Registration Act 2004.
Cases Cited:Brown v The Queen (2019) 59 VR 462; Worboyes v The Queen [2021] VSCA 169; Azzopardi v The Queen [2011] VSCA 372; R v Verdins [2007] VSCA 102.
Sentence: Two-year community correction order with conditions.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Holmes (Plea) Ms V. Gillis (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr S. Kelly (Plea) Mr P. Pathmaraj (Sentence) | Stary Norton Halphen |
HIS HONOUR:
Introduction
1You pleaded guilty to three charges of sexual penetration of a child under 16 and one charge of sexual activity in the presence of a child under 16, Yesterday, I imposed a community correction order with certain special conditions. When doing so, I said I would give my reasons today.
2The circumstances of your offending are set out in the “Summary of prosecution opening for plea”, which is exhibit A. You agree with its contents.
Circumstances
3Jacqueline Torres[1] is the complainant for the first three charges. At the time she was 14 and you were 19.
[1]A Pseudonym.
4On 24 March 2022 she held a party at her home. You and Rita Kirk[2] attended the party, along with others. After a while you and Ms Kirk left the party and returned with alcohol, including seven bottles of vodka and two big boxes of cider. Later you met the complainant, asked her age, she told you she was 14 and in Year 8. You told her you were 19.
[2]A Pseudonym.
5Later, you and Ms Kirk asked everyone to leave the complainant's caravan as she had gone to bed. You lay on the bed between her and Ms Kirk.
Ms Kirk yelled at her to take her shirt off and she refused initially, and then took it off. Ms Kirk demanded the complainant give Ms Kirk her hand, when she did Ms Kirk placed it on your penis. She removed her hand and Ms Kirk put it back and moved it up and down your penis.6The complainant removed her hand again and rolled onto her back. You got on top of her and removed her shorts and underwear. You then removed your pants and put your penis inside her vagina and moved it in and out for about 10-12 minutes. You were not wearing a condom. The complainant said nothing. She stared at the roof and tried not to cry. You removed your penis from her vagina and ejaculated on to her stomach. She put her underwear and shorts back on, rolled over and faced the wall, and cried herself to sleep. These circumstances constitute Charge 1, a charge of sexual penetration of a child under 16.
7The next morning you, Ms Kirk and the complainant woke up in the caravan together. The complainant went inside the main house and spoke to her mother. Later she returned to her caravan. By then you, Ms Kirk and four others were in the caravan.
8At 5.30 to 6 pm the group started drinking alcohol. The complainant consumed a considerable amount of alcohol and smoked marijuana. The complainant felt 'way out of it' and lay on her bed for about three hours.
9At 11 to 12 pm Ms Kirk told the complainant they were all going to bed and asked her to move over so that she and you get into the bed. She moved onto the edge of the bed. You were in the middle. Later, after midnight, you got up and Ms Kirk said to the complainant 'You're so lucky, you're going to get some'. You returned to the bed, removed her underwear and shorts, spread her legs apart, and inserted your penis into her vagina and moved it in and out for
10-12 minutes. Ms Kirk got off the bed and left the caravan. You withdrew your penis and ejaculated on her vagina. Again, you were not wearing a condom. These circumstances constitute Charge 2, a charge of sexual penetration of a child under 16.10The next morning you and the complainant were in the complainant's caravan alone. During the day, you and she drank a bottle of vodka. She invited Billy Todd[3], then aged 13, to her caravan. You removed her shorts and underwear. You then inserted your penis into her vagina and thrust 'really hard' in and out of her vagina for 10-15 minutes. This 'really hurt' and it felt like she was 'being stabbed' inside her vagina.
[3]A Pseudonym.
11While doing this you gave her hickeys on her neck and she pushed your head off her, and she did not want you to do this. You withdrew your penis from her vagina while ejaculating with some ejaculation inside her vagina. She suffered bruises and scratches on her upper thigh due to you holding her tightly. You were not wearing a condom. These circumstances constitute Charge 3, a charge of sexual penetration of a child under 16.
12The complainant got off the bed and sat on the floor. When you were asleep, she returned to the bed. While you were having sexual intercourse with her, Billy was sitting on the couch in the caravan. He saw what you did to her and rubbed his penis with his own hand. This constitutes Charge 4, a charge of sexual activity in the presence of a child under 16.
13The following day, after some difficulty, you left the complainant's caravan. The day after that, she told her mother what you had done.
14On 25 October 2022 the police interviewed you. You made admissions regarding the first incident, being Charge 1.
Criminal history
15You have no previous findings of guilt or convictions. This has some mitigatory effect even though you are young and good character is a lesser factor when dealing with offences against young children.
Victim impact statement
Jacqueline Torres
16On 6 September 2023 Jacqueline Torres made an impact statement. She is tired, flat, sad and very angry. She sleeps a great deal. She has very bad nightmares and wakes up distressed. A nightmare continues after she wakes. Little things trigger memories. She is angry at the wrong people. She has thought of suicide. She struggles to do things she previously loved doing, for example painting.
17She suffered soft tissue injuries. She has been eating poorly. She takes medicine to prevent vomiting. She has been to hospital and the local doctor with her problems. There is no apparent physical cause.
18Her mother resigned her employment to spend more time with her daughter. The family can no longer afford certain activities.
19The reaction at school was surprising. She was bullied and even received death threats. She rarely attends school at present.
Elise Torres
20Elise Torres[4] is the complainant's mother. On 6 September 2023, she made an impact statement.
[4]A Pseudonym.
21She grieves for the changes in her daughter's personality. Her daughter is hostile and angry. Her mother struggles to know how to deal with her, her daughter's problems. She does not eat well, preferring comfort food. She reacts badly to meals prepared for her. Her daughter vomits daily. A physical cause has been eliminated. She has put on weight, which has affected her psychologically. It is hard to get her to go to school. She refuses to attend therapy. She does not want to talk about what happened.
22From what has been said to her and her daughter, Ms Torres said this:
‘I feel shame because two people from Child Protection told me it was my fault and that I failed to protect [Jacqueline]. It was these conversations and accusations that have caused me to doubt myself as a parent, and blame myself, and then think that my children would be better off without me. There has been a compounding effect over time on my feelings of failure, self-blame, shame, and hopelessness, as I have struggled with the consequences of this crime on my daughter. This increased the severity of my own depression and has made me have thoughts of ending my life by suicide.
23And:
Being ‘victim shamed’ and after having family members openly blame me for the incident and tell me I am a ‘bad mother’, makes me feel very angry and upset. I prefer not to talk to friends and family because I feel judged and ashamed'.
24She is profoundly depressed and has received psychological help. She sleeps poorly, she has become housebound, she has to force herself to eat, she feels nauseous, she finds it hard to do the simplest things.
25She resigned her full-time employment to help her daughter. She is a single parent. The family's financial position is poor.
Personal
26You are an only child. Your parents separated when you were an infant. You were raised by your mother and had little contact with your father. In your late teens, you had more contact with him, but you and he just drank alcohol together and you did not consider him a real father. Your father is presently in prison for violent and drug‑related offending.
27Your mother re-partnered and had two daughters. You have a relatively good relationship with your stepfather. You clashed with your stepsisters and were so difficult you left home at 18. You are homeless and ‘couch surfed’. At present, you divide your time between your mother and your grandfather. From your mother's perspective, she is your carer.
Education
28Through your misbehaviour, you had a very disrupted education. At the secondary level you were expelled from three schools. Ultimately you attended a community school; despite the specialisation of such schools, you stopped attending midway through Year 9.
Employment
29You have worked with your grandfather as a boilermaker. You briefly attempted an apprenticeship as a mechanic. Consequently, you stopped working with your grandfather. You have worked for short periods at car yards and in a factory. When the psychologist interviewed you, you had started a job at Ballarat Smash Repairs[5], organised by your uncle. You would like to become a panel beater.
[5]A Pseudonym.
Relationship and Sexual History
30Although engaging sexually since the age of 10, you have had one significant relationship. It started when you were 17 and you have a three-year-old son. You have no contact with your son. You had a short relationship with Ms Kirk. Presently, you are single.
Substance Abuse History
31You started drinking alcohol in your early teens and have been a regular binge drinker since then. You started using cannabis at 14. During the past few years, your cannabis use has been daily. You have used both cocaine, MDMA, ecstasy and LSD sporadically.
Psychologist
32Mathew Barth is a psychologist. At the request of your solicitors, he interviewed you on 19 July 2023.[6]
[6]Report dated 1 September 2023.
33Dr Barth diagnosed you as suffering from a recognised psychological disorder. Using the language of DSM-5 it is a Major Depressive Disorder with mixed anxious distress, recurrent episodes of moderate severity. Adding you are a risk of developing more intense depressive symptoms without psychological treatment.
34Dr Barth found you had difficulty concentrating, which he put down to the symptoms of your attention deficit hyperactivity disorder. These symptoms played a part in your history of profound learning problems, poor social judgment and significant difficulties with independent living. These problems are made worse by your drug and alcohol use. You are impulsive and disinhibited. Your ability to plan is impaired. He saw your substance abuse and sexual behaviour as examples of the effect of these symptoms.
35To Dr Barth you are a very unsophisticated person with low intelligence. He recommended a neuropsychological assessment to determine the level of your intellectual functioning. This has occurred.
36Relevant to these charges Dr Barth said:[7]
‘Mr [O’Neal’s] significant social deficits have culminated in noteworthy dysfunction with his sexual adjustment. He has been unable to establish healthy intimate sexual connections with his peers and this is compounded by his impulsivity and poor understanding of the impacts of sexual abuse on adolescent female children. The problematic features of Mr l[O’Neal’s] interpersonal and sexual adjustment should be addressed through targeted offence-specific treatment.’
[7]At p 9.
Neuropsychologist
37On 21 December 2023 a neuropsychologist, Anna McLaren, interviewed you at the request of your solicitors. In her opinion:
(a) you have a full-scale intelligence quotient of 79, which places you in the borderline range;
(b) your understanding of the rules of social convention behaviour was within the extremely low range (69 and below) and statistically significantly weaker than all other VCI sub-tests;
(c) your current performances indicating primary impairments in attentional skills would be considered most likely in keeping your childhood neurodevelopment ADHD diagnosis, combined with your acute chronic mental health issues and substance abuse, on the background of your childhood exposure to substances, difficult childhood and disrupted education; and
(d) your impairments in attentional abilities combined with your poor understanding of social conventional behaviour, limited vocabulary and a tendency to rush at the expense of accuracy, suggest you may have compromised ability with making calm, reasoned and informed decisions and appropriate judgements in the moment, and may consequently struggle to fully comprehend the consequences of your actions until after the fact, all of which likely contributed to your current offences.
Discussion
Purposes
38Section 5(1) of the Sentencing Act 1991 (‘the Sentencing Act’) sets out the purposes for which sentences may be imposed:
(a) to punish the offender to an extent and in a manner which is just in all of the circumstances; or
(b) to deter the offender or other persons from committing offences of the same or a similar character; or
(c) to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; or
(d) to manifest the denunciation by the court of the type of conduct in which the offender engaged; or
(e) to protect the community from the offender.
39Each of those sentencing purposes is relevant to your sentencing.
Maximum penalties
40The maximum penalty for the offences are:
(a) sexual penetration of a child under 16, 15 years' imprisonment;
(b) sexual activity in the presence of a child under 16, 10 years' imprisonment.
41Both offences are standard sentence offences. The former is a standard sentence of six years' imprisonment and the later four years' imprisonment.
Standard Sentence Scheme
42On 1 February 2018, the standard sentencing scheme commenced operating. Only a few criminal offences are standard sentence offences for which standard sentences are prescribed. The offence contained in sexual penetration of a child under 16 has a standard sentence of six years' imprisonment, while the offence contained in the charge of sexual activity in the presence of a child under 16 has a standard sentence of four years' imprisonment. What then is the meaning of a standard sentence?
43First, it is the period of imprisonment specified for a particular offence. Second, that period is the sentence taking into account only the objective factors affecting the relative seriousness of that offence, and is in the middle of the range of seriousness.[8] The objective factors affecting the relative seriousness of offence are to be determined without reference to matters personal to you and wholly by reference to the nature of the offending.[9] Third, in sentencing you for this offence, I must take the standard sentence as one of the factors relevant to sentencing.[10]
[8]S 5A(1)(b).
[9]S 5A(3).
[10]S 5B(2)(a).
44In Brown v The Queen[11] the Court discussed the standard sentencing scheme. At paragraph 4, it said:
‘The key new requirement is that a judge when sentencing for a ‘standard sentence offence’ must take the standard sentence into account as one of the factors relevant to sentencing. This requirement:
•is to be treated as a ‘legislative guidepost’, having the same function as the maximum penalty;
•does not affect the established ‘instinctive synthesis’ approach to sentencing;
•does not require or permit ‘two-stage sentencing’; and
•does not otherwise affect the matters which the court may, or must, take into account in sentencing.’
[11](2019) 59 VR 462.
Nature and gravity of the offences
45The offending involves three instances of sexual penetration of a child under 16 between 25 and 27 March 2022. It is not confined to a single incident, as often happens in this type of offending nor does it involve offending over an extended period, which also happens. You were 19 and the complainant 14. You were aware of her age. The age difference is relatively small. The complainant and her mother have been profoundly affected by your actions.
46You did not wear a condom; it exposed the complainant to the risk of pregnancy.
Serious sex offender
47In sentencing, you are subject to the serious offender provisions of part 2A of the Sentencing Act in relation to Charges 3 and 4. I will cause it to be noted in the Court's records that you are sentenced as a serious sex offender in relation to Charges 3 and 4 on the indictment.
Guilty plea
48Your guilty pleas were entered at the third committal mention hearing and are early.
49There are benefits of your guilty pleas. First, they are an emphatic acknowledgement of your offending. They show the victim and others you committed the offences.
50Second, they relieve the victim from the need to give evidence against you in a trial. This would have been a difficult task given her age and the nature of the offending.
51Third, you have assisted the criminal justice process; you have removed your case from those needing a jury trial and allowed others to move forward. This has avoided delay and saved the time and expense of a trial. Generally, jury trials are complicated matters involving 12 jurors and lasting weeks; avoiding that is a considerable benefit to the criminal justice system.
52Fourth, the crisis addressed in Worboyes v The Queen[12] and other cases has clearly abated. On 5 May 2023, the World Health Organisation declared the virus no longer constituted a public health emergency. More recently, this Court has announced it has overcome the backlog of cases created by the pandemic. It has reached the pre‑pandemic levels of pending cases. But in another respect the virus still disturbs the smooth running of jury trials in this Court, principally through the unavailability or loss of jurors. Pleading guilty still benefits the system in the way identified in the case of Worboyes, but to a much lesser extent.
[12][2021] VSCA 169.
53Overall, your guilty pleas entitle you to a significant discount on the sentences which would have been imposed if you had pleaded not guilty to the charges but had been found guilty after a trial.
Youthful offender
54You were youthful at the time of the offending and are still young. It requires careful consideration before one sentences a person of your age to a term of imprisonment. Why this was so was explained by Justice of Appeal Redlich in the case of Azzopardi v The Queen[13]. I will quote passages from His Honour's judgment. They are lengthy but I will not summarise them, for doing so tends to undervalue the strength of the propositions. These passages apply to you:[14]
‘There are a number of considerations which underlie the general primacy of an offender's youth as a sentencing consideration. First, young offenders being immature are therefore "more prone to ill-considered or rash decisions". They "may lack the degree of insight, judgment and self-control that is possessed by an adult". They may not fully appreciate the nature, seriousness and consequences of their criminal conduct…
Secondly, courts "recognize the potential for young offenders to be redeemed and rehabilitated". This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, "is one of the great objectives of the criminal law". The added emphasis for the purposes of sentencing on realisation of a young offender's potential to be rehabilitated is further justified because of the community's interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending…
Thirdly, courts sentencing young offenders are cognizant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender's prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community'.
[13] [2011] VSCA 372.
[14][2011] VSCA 372 at [34] to [36].
55The proposition in those passages apply to you. Because of your age now and your intellectual capacity, imprisonment would damage your rehabilitation and would exposure you to persons with entrenched antisocial attitudes.
56The extent and the depth of the therapies which a properly structured community correction order is unlikely to be available in prison despite the range of services which Corrections Victoria can offer to prisoners.
57Your immaturity and its effect on your decision making is reflected in the psychological findings made about you.
Prospects of rehabilitation
58The fact and timing of your guilty pleas point to your remorse. There are indications of your remorse. Although you made certain comments to the neuropsychologist, Ms McLaren, I am satisfied your remorse indicates a desire not to reoffend in a similar manner.
59You continue to live with your mother in a bungalow on her property. You have resumed your relationship with the mother of your two children. For a while, she and the children lived with you in the bungalow. Since the renovations have been completed to her father's home, she and the children have returned to live there. No doubt it is more spacious than the bungalow.
60You receive a Disability Support pension. Despite this, you want to work and are actively looking for paid employment.
61I am imposing a sentence which has a significant punitive and rehabilitative component. It will act as an important deterrent to future offending. It will also act to rehabilitate you through the length of the order and the therapeutic conditions attached to it.
62Overall, I consider your prospects of rehabilitation are good.
Verdins
63Principles 5 and 6 of the case of R v Verdins[15] is relevant to the sentencing of you. Since your depressive disorder has arisen after the offending and in response to the prospect of imprisonment, I agree your moral culpability for the offending is not reduced due to the disorder.
[15][2007] VSCA 102.
64The existence of the disorder, those relating to substances and your intellectual impairment does affect the sentencing purpose of general deterrence. There would be fewer likeminded persons who would identify with you. Those matters do not affect the purposes of specific deterrence or protecting the community from you.
Current sentencing practices
65Your counsel summarised sentence appeals and sentences regarding the offence of sexual penetration of a child under 16.
Pre-sentence report
66I have received a pre-sentence report. The author found you suitable for a community correction order and recommenced certain conditions. I adopted those recommendations. I made the order yesterday.
Sentence
67On all charges, you are convicted and sentenced to a Community Correction Order for a period of two years with the following conditions:
(a) to perform 300 hours of unpaid community work;
(b) to be supervised, monitored and managed as directed by the Secretary;
(c) to undertake any assessment or treatment for drug abuse or dependency;
(d) to undertake any assessment or treatment for alcohol abuse or dependency;
(e) undertake any mental health assessment and treatment;
(f) undertake any programme to address factors related to her offending behaviour;
(g) to attend Court on 29 July 2024 at 9.00am for the purpose of judicial monitoring.
68All hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
Sex Offenders Registration Act
69You are liable to obey the reporting conditions of the Sex Offenders Registration Act 2004 for the rest of your life.
S 5B(5)
70The sentences imposed on the charges on the indictment are quite obviously less than the standard sentence. This has come about by considering the relevant factors including the gravity of the offences, the effect on the victims and your personal circumstances.
S 6AAA
71If you had not pleaded guilty to these offences but had been found guilty after a trial, I would have sentenced you to a total effective sentence of two years' imprisonment.
‑ ‑ ‑
0
5
0