Director of Public Prosecutions v O'Sughrue
[2017] VCC 360
•6 April 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| SEXUAL OFFENCES LIST |
Case No. CR-16-01046
Indictment No. F13719686.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN O’SUGHRUE |
---
JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 February 2017 | |
DATE OF SENTENCE: | 6 April 2017 | |
CASE MAY BE CITED AS: | DPP v O’Sughrue | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 360 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – sexual penetration of a child under the age of sixteen (three charges) – Two complainants – Provision of Cannabis to complainants.
Legislation Cited: Crimes Act 1958, s45(1); Crimes (Amendment) Act 2000; Sex Offenders Registration Act 2007, s31(1)(c); Sentencing Act 1991 (Vic)
Cases Cited:Clarkson v R (2011) 32 VR 361; Riggall v State of Western Australia (2008) 37 WAR 211
Sentence: Total effective sentence of six years’ imprisonment with a non-parole period of four years – Sex Offender Registry for life. Section 6AAA declaration: Nine years’ imprisonment with a non-parole period of six years.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A McHenry | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr N Leslie | Slink & Keating Solicitors |
HIS HONOUR:
1 Steven O’Sughrue, you have pleaded guilty to three charges of taking part in an act of sexual penetration with a child under the age of 16 years. The maximum penalty in relation to each offence is ten years’ imprisonment. Your offending occurred between March 2014 and December 2014.
2 Charge 1 is that between 1 March 2014 and 31 October 2014 you took part in an act of sexual penetration with the first complainant, a child under the age of 16 years, in that you introduced your finger into her vagina. This charge is representative of three occasions.
3 Charge 2 is that between 1 March 2014 and 25 December 2014 you took part in an act of sexual penetration with the second complainant, a child under the age of 16 years, in that you introduced your penis into her vagina. This charge is representative of four occasions.
4 The third charge is that between 1 March 2014 and 25 December 2014 you took part in an act of sexual penetration with the second complainant, a child under the age of 16 years, in that you introduced your finger into her vagina.
5 All charges were in contravention of s.45(1) of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 2000.
Circumstances of offending were as follows:
6 A Prosecution Opening was tendered on the plea. It is an agreed summary. Your offending conduct can be summarised as follows.
7
You befriended the mother of the second complainant in around March or
April 2014 through a mutual friend. Initially you used to visit the complainant’s home around two to three nights a week from about July or August 2014. From late August 2014 you would come around every day and by early September 2014 you started staying the night. The second complainant’s mother states that you were at home with her daughter and her friend, the first complainant, about half a dozen times without her being there.
8 The first complainant was born in 2000 and at the time of the offences she was aged 13 to 14. The second complainant was also born in 2000 and at the time of the offences she was aged 13 and 14.
9 The first and second complainants became friends in 2014 and became very close. The first complainant would often see you at the second complainant’s home where she used to associate with her friend, the second complainant.
10 The offending appears to have commenced in early 2014 when, while the second complainant was in the shower and her mother was not present, you were speaking to the first complainant and tried to kiss her. She, in turn, “hesitated” and nothing further happened.
11 A couple of days later, the two complainants were lying together on the second complainant’s bed when you came in and offered them marijuana, which they smoked.
12 On the next night the complainants were in the second complainant’s bed when you again offered them both marijuana and got onto the bed between them. You started touching the first complainant and you told her that you wanted her to be your boyfriend. She alleges this caused her to “freak out”.
13 Soon thereafter the first complainant told her mother that you had tried to kiss her and the mother, in turn, cut all ties with you. Nonetheless you continued to reside at the second complainant’s residence and the first complainant continued to visit there. A couple of days later the first complainant apologised to you for telling her mother about the kiss.
Charge relating to the first complainant:
14 The first complainant states the first occasion that something happened was around March 2014. On this occasion she was in the second complainant’s bed. The latter had gone somewhere else. You started saying how beautiful the first complainant was and she responded by kissing you. You then started kissing her and you put your fingers inside her vagina (Charge 1 – sexual penetration of a child under 16, which is a representative charge).
15 The second occasion of offending that took place with the first complainant was after she had dislocated her knee. She was at her own home, in bed, recovering. You came around, saying you were looking for her mother. The first complainant touched your penis and you digitally penetrated her vagina. The activity stopped when the complainant’s mother and friend returned (This is represented in Charge 1).
16 On the third occasion the first complainant had snuck out of her house to meet you in order to obtain some marijuana from you. You met at a milk bar and you drove the both of you to your house, where you smoked some marijuana. You were lying on your bed. You were hugging the first complainant and trying to kiss her. She was telling you that she could not “do it”, but after about five minutes she said she gave in so she could, “get it over with and leave”. The first complainant kissed you back and you put your hand down her pants. You both undressed and you asked if you could have sex with her. The first complainant said she did not want to lose her virginity at this age and said that she did not want to lose it to a 27 year old. The first complainant touched your penis. You put your fingers inside her vagina and placed your “face down there” (represented in Charge 1).
Charges relating to the second complainant:
17 The second complainant met you when you became friends with her mother. On the first occasion of your offending both complainants were staying at the second complainant’s house overnight. Later, you were lying on her bed with the second complainant when you pulled your pants down and tried to kiss her, but she would not kiss you back. At one point you put your penis inside her vagina as well as other sexual activity (Charge 2 – sexual penetration of a child under 16, which is a representative charge). This charge is representative of four occasions.
18 This occasion had occurred in the context of you entering the second complainant’s bedroom and offering her marijuana. The second complainant says that she thought that what you were doing was wrong but she did not want to tell her mother as she thought she would get in trouble and thus kept it to herself. Also, after this occasion you started living at the second complainant’s house and sleeping on a couch.
19 A day or two later you and the second complainant were home alone together. You sat next to her on the couch and got under the blanket she had over her. You pulled her shorts and underwear to the side and digitally penetrated her vagina (Charge 3 – sexual penetration of a child under sixteen).
20 Thereafter you pushed her backwards and penetrated her vagina with your penis before you went off to have a shower when you thought you had heard somebody at the door (This is represented in Charge 2).
21 The second complainant states that you made her fall in love with you and you started calling her your girlfriend.
22 On the third occasion you were together at your friend’s house about two to four weeks later in Cranbourne West. You took her into a back room where you had some marijuana and alcohol. You got on top of her and placed your penis inside her vagina (This is represented in Charge 2).
23 The fourth occasion was on Christmas Day 2014. You had sent a text message to her the day before and you met at a local park in Scoresby on Christmas Day. The second complainant agreed to meet you because she wanted some marijuana. You smoked some marijuana and got into the back seat of your car and you penetrated her vagina with your penis. Thereafter the second complainant got out of the car and walked home. She did not tell anyone what happened because she was scared (This is represented in Charge 2).
24 In 2014 you attended the house of a Mr Langwell (a pseudonym) with the second complainant’s mother. You stayed until 1 or 2 am. Thereafter you kept coming to the same house and after a while started attending with the second complainant and told Mr Langwell, “That’s me missus”. In response to Mr Langwell saying that she looked a bit young, you dishonestly replied that the second complainant was 18, turning 19. You told him of your purported sexual relationship with both mother and daughter and that the second complainant was a “good root”. Mr Langwell later received a call from the mother saying, “Do you know she is 14?”, which caused Mr Langwell to confront you and he told you to never come back again.
25
You made regular telephone calls and sent many text messages to the second complainant. In particular, 11 occasions of your text messages to the second complainant have been tendered in evidence, and they were made between
28 January 2015 and 8 February 2015, all tending to suggest that you were intending to continue an emotional and sexual relationship with the second complainant.
26 You were interviewed in relation to the first complainant on 11 February 2015 and denied the offence.
27 You were interviewed in relation to the second complainant on 25 March 2015 and denied the offences.
28 Nonetheless, after some negotiation between the parties you pleaded guilty in this Court on 21 November 2016.
29 Exhibit A is a Victim Impact Statement from the second complainant. Therein she describes feelings of being ashamed and worthless and having lost all of her friends at school. She has thoughts at times that “everything is my fault”, and has had thoughts of suicide. She suffers from memory loss and has trouble concentrating as the events continually return to her thoughts. Further, she has trouble with her schoolwork now. She feels lonely and has no-one to confide in. She feels she is not a happy-go-lucky person anymore and that she is being victimised by her school friends. She finds it difficult to trust male adults and she often has nightmares from what has happened to her. She finds it hard to get a good night’s sleep and she blames you for introducing her to marijuana and alcohol, which has made her aggressive and argumentative. She states you have robbed her of her confidence, self-esteem, dignity and respect and took her innocence. It is to be hoped that time will help her heal from that which she should not have endured.
30 When the offending first happened the complainant found it very confronting. She thought it was her fault. She states that you told her it was her fault and she believed you.
31 Exhibit C is a Victim Impact Statement from the first complainant. Before all of these events she states she had lots of friends and the second complainant was one of her main friends. She states that you have separated them and that their friendship has never recovered. The complainant states that she felt disgusted with herself. She says she has been prevented from forming friendships at school and she feels that she just is not “fun any more”. She felt she was alone for the whole of Years 8 and 9, but Year 10 was better and she says now she is doing okay in Year 11. She states that it takes her a while to feel safe and trust men that she meets. Before this happened her bedroom was her safe zone and now it is not, and it reminds her of the things that have happened. When it first happened, it took her a long time to get to sleep and she would fall asleep at school. She felt she could only sleep if she was at someone else’s house. She would have nightmares and wake up screaming. Even now if she hears your name she feels sick.
Your personal background:
32 You were born on 7 August 1986 and at the time of the offending you were approaching 28 years. You attended Koo Wee Rup and Berwick High Schools until Year 10. You played football for the local under 18s, under 19s and reserve teams, and you were voted best footballer in the latter competition.
33 After leaving school you completed an apprenticeship as a chef and worked at the Clover Cottage Restaurant in Berwick, which was voted one of the best restaurants three years in a row. Thereafter, you worked in Ayres Rock for approximately three years. Later, you were employed at a Flinders Lane café for approximately one year.
34
Thereafter, you went into your father’s transport business which, after a short time you ran in your own right. You bought a house at the age of 23 and fathered two children, a male and a female born on 16 December 2008 and
27 July 2010, respectively. Your relationship with the mother of your two children ended in 2013 at approximately the same time as you became involved “selling Ice”. Separation was not amicable and an intervention order was taken out for a period of 12 months. You have not seen your two children for the past three-and-a-half years.
35 At the age of 27 you were introduced to cannabis, GBH and ice by a cousin. You had “cash to blow”, arising out of the business in which you were employing ten people. As a result of your involvement with drugs you suffered a breakdown and lost the business. It was later that you were introduced to the mothers of the two complainants by a mutual friend, and the circumstances of the offending have been detailed above.
36 Your counsel has submitted that you did not feel in this period that you were your “real self” and you knew you were not making the right decisions. You knew you were doing the wrong thing. It is further submitted that, on your release from prison you will restart your removal business and that you are actively engaged in work in the prison while on remand, being involved in screen printing.
Psychological assessment:
37 Your solicitors have procured a report from forensic psychologist and clinical neuropsychotherapist, David Ball, dated 24 February 2017. On this occasion Mr Ball relates:
“His mental status examination was broadly unremarkable. He described no significant symptoms of depression or anxiety and described his mood in stable … terms. He became briefly tearful when discussing his estrangement from his father but otherwise appeared to maintain composure without notable effort.”
(Page 2)
38 Further, he relates:
"[His] immediate recall, short-term memory and long-term memory appeared intact in clinical interview and he was oriented to time, place and person. There was no evidence of cognitive impairment in clinical interview and I would estimate his IQ to reside within the normal range.
Overall, Mr O’Sughrue impressed me as a man with the capacity to generally good judgement. He presented as having the capacity to plan and execute positive and self-sustaining behaviour. However, he demonstrated little insight into his offending behaviour and general psychological functioning and has a recent history of substance abuse.”
(Page 3)
39 Mr Ball describes a history of a stable family upbringing, where you and your sisters were shown appropriate affection and had appropriate boundaries set for you. You currently maintain relationships with members of your family, with the exception of the strained relationship with your father. You related your personal circumstances to Mr Ball as follows: After the breakdown of your relationship in 2013 you were introduced to methylamphetamine by a cousin and rapidly became addicted:
“He said that he would typically use around .2g of this substance daily but that this was ‘variable’. He also acknowledged using cannabis over a similar period of time and said he would use approximately 2g over the course of a week.
[He] acknowledged some of the negative impacts of his substance use and said, ‘My life has been. I’ve lost my family – most of all my two beautiful kids ... I turned into an angry person ... but I just couldn’t stop using ice. It contributed to all my offending as ice had taken over my thinking and mind and I was making the wrong choices.’”
(Page 4)
40 Further, Mr Ball stated:
“[He] explained his offending in the context of substance abuse with blurred and chaotic familial boundaries. He said he had a clear recollection of the events despite being affected by up to .5g daily of methylamphetamine and 1g daily of cannabis.”
(Page 4)
41 As to diagnosis, Mr Ball considers that you satisfy:
“… the DSM 5 diagnostic criteria for severe stimulant use disorder and moderate cannabis use disorder – in early remission – in a controlled environment. Beyond that, he fails to satisfy any DSM-5 diagnostic criteria for frank mental illness, personality disorder, mood disorder of other clinical syndromes. Importantly, he fails to satisfy the DSM-5 diagnostic criteria for paedophilic disorder.”
(Page 5)
42 Importantly, Mr Ball states:
“[He] is no way impaired in his understanding or appreciation of the criminal justice system or the illegality of sexual or other offences. Nor is there any impairment to his capacity for moral reasoning or culpability.”
(page 5)
43 On formal testing, he placed you in the:
“… low to moderate category for sexual re-offence relative to other male sex offenders.”
(Page 6)
44 Lastly, it was Mr Ball’s opinion that, on your part, there was a:
“… failure to understand the negative impact of underage individuals engaging in sexual relationships with older adults … .
The main protective factors that may be applied to [him] are the successful completion of a sex offender treatment program. He would greatly benefit from developing the understanding of the effects of child sexual abuse upon his victims.”
(Pages 6 and 7).
Nature of offending and its gravity:
45 Any offence of this nature is serious. This was not a single isolated incident and it involved two different complainants under the age of 16, both of whom have been harmed by your behaviour. You showed little or no regard for the welfare of both complainants of relatively tender years, intent, it seems, upon your own perverse gratification. The age and power imbalance was significant. Effects are both real and, in the usual course, enduring.
46 Consistent with the Prosecution Opening, I accept it is the law that, “premature sexual activity is presumed to cause ‘long term and serious harm, both physical and psychological’ to the child.”[1]
[1]See Clarkson v R (2011) 32 VR 361 at paragraph [20]
47 It is unclear as to whether you actually introduced both complainants to marijuana and alcohol or, in fact, other persons had done so. In any event, it is clear that you used both substances in order to inveigle yourself into the affections of both complainants so that you could obtain your own gratification.
48 You were aged almost 28 at the time of these offences and had had a wide experience in the world as a chef, including a stint in Ayres Rock for some three years, and you had previously fathered two children. You had run a successful business, which you had taken over from your father. I can infer that part of your estrangement from him is connected with your subsequent running down of this business.
49 It is clear enough that you used your adult relationship with the two mothers of the complainants, whatever its exact nature, to embark upon a secretive pursuit of your own sexual ends with their underage daughters. One can only hope that your abstinence from drugs while in prison will improve your ability to have insight into the harm that you have caused. Your actions were carried out furtively with respect to their parents and brazenly with respect to your adult friend and indeed with the complainants.
50 To treat the complainants’ consent as mitigating would defeat the objectives clearly set out in the Act. In order to advance the protection of children against the harms caused by premature sexual activity the courts must enforce in the clearest terms the absolute nature of the prohibition. For the courts to endorse the notion that the child’s “consent” makes the sexual activity less blameworthy, or less grave, would undermine the very protection of children which the legislation seeks to secure. As the Supreme Court of Western Australia, Court of Appeal said in Riggall,[2] even where a young person does appear to wish to engage in sexual activity:
“There is a duty cast upon others to refrain from encouraging or acting upon those wishes. The more mature the other person, the greater the degree of self-control which should be demanded of them.”[3]
[2]Riggall v State of Western Australia (2008) 37 WAR 211
[3]See Clarkson v R (supra) at paragraph [37]
51 Your prospects of rehabilitation are, I think, somewhat guarded, but if you avail yourself meaningfully in the Sex Offenders Treatment Program, your underlying intelligence and worldliness may be of real benefit.
52 Your counsel points to the fact that you have pleaded guilty to these offences as a matter to be taken into account in mitigation, which you entered at a relatively early stage despite having made denials to police.
53 General and specific deterrence are relevant sentencing principles which must be given weight in the sentence I impose today. I must seek to deter not only you, but others who would engage in this sort of conduct, which so seriously damages the lives of our children. In cases involving abuse of children the Court of Appeal has said on many occasions that general and specific deterrence are paramount considerations. It is apparent from the facts in this matter that you took advantage of both young girls’ attraction towards you, having inveigled yourself into their affections via your relationship with their respective mothers. You took advantage of the trust placed in you by the mothers and your friendship with the two families to abuse their children in their family homes. The simple fact is that you are the adult and they are the children and you should not have perpetrated these offences upon them. The sentence I deliver must reflect the community’s disgust for such conduct and the need for both general and specific deterrence.
54 Your sentence must demonstrate the community’s denunciation of your conduct and impose just punishment.
55 It is not disputed that by your conduct you fall to be sentenced as a serious sexual offender in respect of Charge 3. I am required to have regard to the provisions of Part 2A of the Sentencing Act 1991 (Vic), which requires that I regard the protection of the community as a principal purpose for which sentence is imposed. I may, in order to achieve that purpose, impose a longer sentence which is proportionate to the gravity of the instant offence, considered in light of its objective circumstances.
56 Any sentence imposed on these charges must be served cumulatively unless otherwise ordered. I have considered that in your case it is not necessary, nor appropriate, to achieve the protection of the community to impose a sentence which is longer than that which is proportionate to the gravity of each relevant offence in light of its objective circumstances. I direct that it be noted in the records of the Court that I have sentenced you as a serious sexual offender on all charges. Mr O'Sughrue, could you please stand up? You are convicted and sentenced as follows:
Charge 1, you are convicted and sentenced to be imprisoned for three years;
Charge 2, you are convicted and sentenced to be imprisoned for four years;
Charge 3, you are convicted and sentenced to be imprisoned for two years.
57 I direct that the four year sentence on Charge 2 be the base sentence, and I direct that the sentence upon Charge 3 is to be served concurrently, and two years of the sentence upon Charge 1 to be served cumulatively with the sentence upon Charge 2 and upon each other. That makes a total effective sentence of six years.
58 I direct that you serve four years before becoming eligible for parole. I direct that it be noted in the records of the Court that, but for your plea of guilty, I would have sentenced you to a total effective sentence of nine years, with a non-parole period of six years.
59 I have been mindful in sentencing you, both Charges 1 and 2 are representative charges. I am required to sentence you upon the basis of the conduct which founds each charge but I may have regard to other occasions which you have admitted in coming to a view as to the gravity of the instant offence, that is I may view the offence in the wider context disclosed by your admission of the other acts which are not the subject of the charges. This wider context is also relevant to any assessment of your prospects of rehabilitation, which are of course affected by the duration and frequency of your prior conduct. I emphasise, however, that I have sentenced you on the basis of the acts which found the charges to which you have pleaded.
60 You may sit down, thank you.
61 By operation of s.34(1)(c) of the Sex Offenders Registration Act 2004, you are deemed to be registrable and you will be required to continue to comply with the reporting obligations imposed by Part 3 of that Act for the remainder of your life. In a moment my associate will provide you with relevant documentation setting out your obligations and ask you to sign an acknowledgement that you have received the documentation.
62 Finally, the prosecution makes application pursuant to s.464ZF of the Crimes Act 1958 for an intimate forensic sample to be taken from you. You consent to this. I am satisfied it is in the interests of justice, having regard to the seriousness of your offending, to make the order, which I do in terms of the draft. I must inform you that the relevant authority may use reasonable force to enable that procedure to be conducted.
63 Is there any pre-sentence detention, Mr Prosecutor?
64 MR McKENRY: There is, Your Honour, 37 days not including today.
65 MR LESLIE: That's correct, Your Honour.
66 HIS HONOUR: All right. Pursuant to s18 of the Sentencing Act 1991 (Vic), I declare 37 days to be reckoned as a period of imprisonment already served under this sentence, excluding today.
67 HIS HONOUR: Are there any other matters?
68 MR McKENRY: Not from me, Your Honour, no.
69 HIS HONOUR: Excuse me. All right. My Associate will provide those documents to be signed and then once they're signed the prisoner may be removed and otherwise we can adjourn temporarily.
70 MR McKENRY: If Your Honour pleases.
71 HIS HONOUR: Thank you.
---
0
2
0