Director of Public Prosecutions v Oakley

[2021] VCC 1964

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-01024

DIRECTOR OF PUBLIC PROSECUTIONS

v

HARRISON OAKLEY

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2021
DATE OF SENTENCE:	22 November 2021
CASE MAY BE CITED AS:	DPP v Oakley
MEDIUM NEUTRAL CITATION:	[2021] VCC 1964

REASONS FOR SENTENCE

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Subject: Criminal law - sentence

Catchwords: plea of guilty to one rolled-up charge of sexual penetration of a child under 16 and one rolled-up charge of supplying drugs to a child – offender then aged 21 and complainant 15 – offender now 22 – psychologically vulnerable – socially immature – severe bullying at school - drug addiction – offender had considered relationship genuine and lasting – strong family support – father of child at age 17 –child initially placed in his case -  his parents have care of child now aged 3 – Prosecution agreed to CCO being appropriate. – low risk of re-offending – good prospects for rehabilitation.

Legislation Cited: Sex Offenders Registration Act

Sentence:                  Conviction CCO 18 months – 100 hours  ---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J Fitzgerald	OPP
For the Accused	Ms J Swiney	MNG Lawyers

HER HONOUR: 

1Harrison Oakley, you have pleaded guilty to one charge of sexual penetration of a child under 16 and one charge of supplying drugs to a child.  The first charge is a rolled-up charge comprising three occasions, and the second is a rolled-up charge comprising two occasions.

2I will be imposing a Community Correction Order which will begin today, and I will explain my reasons.

3The offending occurred between September and December 2020.  You were aged 20 at the time, and the complainant was aged 15.  You each lived with your respective parents.  The complainant had told you she was 16.  You met through mutual friends and quickly began a sexual relationship.

4On the first day of your acquaintance, you shared speed or amphetamine with the complainant.  This is the first part of Charge 2.  You had sexual intercourse with her that evening and on following days until 11 November 2020.  Those instances are not the subject of any charges.

5Because of the amount of time you spent with the complainant during this time, her father often reported her as missing.  On 11 November, you spoke with a police officer who informed you that the complainant was 15 years old and that it was an offence to have sex with her.

6The complainant went to live with her half-sister in country Victoria from 13 November, and you did not see her again until 1 December.  Around that date, the two of you spoke on the phone and arranged to meet in Melbourne and to stay in a hotel.  The complainant told her sister that she would be staying the night with her friend in Shepparton.  Instead, she came to Melbourne with her friend and met you at Southern Cross Station. 

7You booked two rooms at a nearby hotel, but you could not pay for them until some payments were made into your account.  So, the three of you wandered around the streets until the money was paid at about 12.30 am on 2 December.  In one of those rooms, you had consensual sexual intercourse with the complainant during which you penetrated her vagina with your tongue and then with your penis.  You did not use a condom, and you ejaculated onto her stomach.  That is the first part of Charge 1.

8Later on 2 December, you and the complainant met with an acquaintance of yours from whom you bought marijuana and ice.  That evening, you supplied ice to the complainant which she smoked in an ice pipe.  That is the second part of Charge 2.  You and the complainant remained at the hotel and, again, had consensual sexual intercourse in the same manner on 4 December.  That is the second part of Charge 1.

9That evening, police located the complainant at the hotel.  They had a Safe Custody Warrant and took her and her friend to a secure welfare facility operated by the Department of Health and Community Services.  You had returned to the hotel while the complainant was with the police in the lobby, and they found that you had an ice pipe in your possession.

10On 15 December, you were arrested at your parents' home, and you took part in a record of interview.  You admitted having had sex with the complainant on 2 December and on two other occasions at the hotel, 3 and 4 December.  These two instances gave rise to the second and third parts of Charge 1.

11You admitted having supplied speed to the complainant about six or seven times between September and November as well as marijuana during that time and after November. 

12The complainant provided a victim impact statement in which she stated that she felt ashamed that she had got herself into that situation.  She said she felt hopeless being unable to do anything about it.  She did not think she would be believed if she told anyone, and she thought if she did not do what you wanted, you would leave her.

13Since then, she stopped eating, and she barely slept, and she has had nightmares about you on top of her.  She felt disgusted with herself and can no longer wear shorts as she did not want her skin to show.  She said she will never be able to forgive you.  She filled in a diagram indicating negative attitudes towards herself and towards her family relationships and her schoolwork.

14I turn now to your personal background and other circumstances.  You were born in November 1999.  You turned 21 just recently.  The sentencing submission made on your behalf is for a Community Correction Order bearing in mind your youth, your early plea of guilty, your immaturity and vulnerability and other matters when balanced against the seriousness of the offending and the importance of general deterrence.

15You were seen by the psychologist Mr Jeffrey Cummins recently for an assessment and report.  Mr Cummins provided a detailed account of your background from which he drew several conclusions.  He assessed you as being psychosocially immature with problems with stress and coping.  He considers that you suffer from an attachment disorder and also from an unresolved grief process emanating from the separation from Chrysta Pearsall, the mother of your three year old child. 

16You have some of the characteristics of a dependant personality disorder and problems with illicit drug use.  Mr Cummins considered that your risk of further sexual offending is low, and in his view it is not necessary for you to take part in a sex offender program.  He considers that your offending was situationally motivated and opportunistic and, to a significant degree, motivated by your mental health problems at the time.

17He considers you are at least moderately depressed, and your mental health would inevitably deteriorate if you were to be imprisoned.  According to what you told Mr Cummins, you had been diagnosed with post-traumatic stress disorder following the breakdown of the relationship with your former partner.

18The details of that relationship are set out in Mr Cummins' report dated 26 October 2021.  It had begun in January 2018 when you were aged 17.  Ms Pearsall was aged 22.  She became pregnant early in the relationship, and your daughter was born in Hobart in October that year.  You remained in Hobart with them until January 2019 when you returned to Melbourne as you were unable to find work there.

19Soon afterwards, Ms Pearsall and the baby arrived in Melbourne and came to live with you and your parents.  It emerged that Ms Pearsall was addicted to cannabis and Valium and had problems with mood variation.  She abused you verbally and physically and threatened to kill you and your daughter.

20Together, you rented a house where you lived for a few months until an occasion when you concluded your life and that of your daughter were at risk, and you jumped out of a window with the child and called your mother to drive you to the police station.  Following court proceedings, your daughter remained in your care and that of your parents.  As a result of being charged with the current offences, the relevant department became involved, and your daughter is now formally in the care of your parents only.  You are permitted to see her with one of your parents acting as supervisor. 

21In August this year, Ms Pearsall telephoned you to say she is now in a new relationship and living with her father in South Australia.  Apparently, she has continued to contact you, and the police have been informed.  Mr Cummins' account of your history of abuse of drugs and alcohol describes it as a problem throughout most of your teenage years and continuing. 

22You were introduced to alcohol at the age of 12 and had a problem with it by the age of 17.  You still have occasional binges.  You have used cannabis since the age of 14, smoking three grams a day until your daughter was born.  You returned to cannabis use after the separation from Ms Pearsall, but by the time you saw Mr Cummins, you had begun to cease that use.  Amphetamines have been a problem for you since you were 17 on and off with continuing use until very recently.

23In March this year, following intervention by your father and the police and after several overdose attempts on your life, you admitted yourself to the psychiatric ward of the Royal Melbourne Hospital.  When you were discharged after a week and a half, you had yourself admitted to St Vincent's Hospital remaining there for a further week and a half.

24You were on bail at this time for these offences and were unable to return to live with your parents and daughter because of your drug taking, of which the department had become aware.  Until a bail variation could be arranged, you moved to an apartment for 13 days.  You told Mr Cummins the apartment block was full of drug users, and you had rung you mother in an hysterical state.  She took you to Sunshine Hospital where you spent a day in the psychiatric ward before spending two weeks in a motel.

25Eventually, your bail was varied to allow you to live with your grandmother.  She developed dementia and soon moved to a nursing home.  You now live in her house on your own, but remain in regular contact with your parents.  You have been trying to tackle your drug addiction with support from your general practitioner and a drug counsellor, but Mr Cummins considers you need residential rehabilitation.  He reported that you were very resistant to this idea and were confident you could succeed on your own, although, you did tell him that you had inquired about residential rehabilitation with Quin House, but you were not accepted.

26You grew up in an intact family with two sisters.  At school, you had difficulty making friends and were subject to severe bullying, leading to assessment at two separate stages for possible diagnoses of ADHD or autism, but both were excluded.  From school, you transferred to TAFE, and you completed a horticultural apprenticeship.  You worked in that field for 12 months, but resigned because of bullying by your employer.

27You went on to complete a number of trade certificates and remained employed until late 2020.  After almost a year of unemployment, you resumed working for your uncle doing warehouse work, but ceased recently with a shoulder injury and also to focus on these court proceedings.

28You have recently been diagnosed with a genetic condition called Ehlers-Danlos Syndrome which is believed to be linked to your shoulder injury.  Mr Cummins noted a history of loss of consciousness resulting from a number of head injuries, and he later performed neuropsychological testing.  This ruled out ADHD and autism, but disclosed a learning difficulty despite high scores in some testing areas indicating a superior intelligence.

29You told Mr Cummins that in 2020, your sister had disclosed sexual offending by a cousin's boyfriend which resulted in protracted court proceedings causing trauma to her and to you.  This was a matter which your parents confirmed with Mr Cummins when he interviewed them recently.  They also confirmed your care and affection for your daughter, the trauma you suffered at the time of your separation from Ms Pearsall and the efforts you have been making to remain free of illicit drugs.

30It has been necessary to set out this background in considerable detail as the picture is that of a vulnerable young man who has had great difficulty dealing with a number of stressors since your early teenage years.  You believed your relationship with the complainant was a genuine one, and you loved her and asked her to marry you.

31Three people who know you well through sporting clubs and family connections have written references describing your good qualities, that are entirely consistent with the fact that you have no previous convictions and have been a young person of good character in the past.

32Ms Swiney submitted on your behalf that a Community Correction Order would be the appropriate sentence, and the prosecution agreed, despite the serious nature of the offences and the need for general deterrence.  As a young offender, it is acknowledged that your rehabilitation is important, and that is best achieved in your case by treatment in the community and by avoiding the additional trauma that imprisonment would likely inflict.

33In that respect, I understand that your parents are prepared to help financially with residential rehabilitation.  Although that is not available presently because of the pandemic, perhaps that might be changing quite soon.

34I take into account the psychological vulnerability identified by Mr Cummins, and it is chiefly for that reason I have set out so much detail about your troubled background.  That vulnerability together with your social immaturity played a part in your offending, and it is relevant also to the deleterious likely effect of imprisonment upon you.  I take into account your very early plea of guilty which is important as it avoided the need for any witness to have to be cross-examined.

35At a time when the pandemic has caused an enormous backlog in trials, your plea has been of great value to the system of criminal justice, and that must be acknowledged through the means of a discount on your sentence.  I am satisfied that a Community Correction Order with a number of obligations imposed upon you will provide adequately for purposes of punishment and address your rehabilitation needs.

36You have been assessed as suitable, and I make that order which will apply to both charges.  It will begin today and will last for 18 months.  You will be under supervision, and you must perform 100 hours of unpaid community work.  You must attend programs for drug and alcohol treatment, and you must be assessed as to your suitability for a program to address your mental health. 

37As I said earlier, Mr Cummins did not recommend that you take part in a program for sex offenders, but the Corrections officer who assessed you did recommend this.  You told her that you did no harm to the complainant and offered no remorse.  The officer recommended that you take part in an offence specific program, and I took her to mean a sex offenders’ program, notwithstanding Mr Cummins' contrary recommendation.

38I inferred from the comments of the Corrections officer that her recommendation was made at least in part on the basis that your lack of remorse suggests a lack, at least to some degree, of comprehension of harm which may result from underage sexual activity.

39I have concluded that there is a need for you to engage in a sex offender program for those reasons, and, so, it will be included as a condition.  The hours that you spend in programs such as that one will be credited towards your community work.  You will be required to report to Broadmeadows Office of Corrections which is at 25 to 27 Dimboola Road, Broadmeadows, and you must do that by 4 o'clock on Wednesday.  So, you have got two clear working days to do that.  Do you understand those obligations, Mr Oakley?

40OFFENDER:  Yes, Your Honour.

41HER HONOUR:  All right.  You will be placed on the Sex Offenders Register requiring you to provide details of your address and other matters to the police for 15 years.  The correction order itself will be forwarded to you, Mr Oakley.  Once I leave the bench, I will leave the link open so my associate can talk to you and Ms Swiney about that arrangement, and you can sign it and have it sent back again. 

42Are there any other matters that I have neglected or omitted, Mr Fitzgerald?

43MR FITZGERALD:  Your Honour, unfortunately, my internet connection was somewhat bouncy through some of that, and I didn't hear the number of hours that Your Honour imposed in relation to the CCO.

44HER HONOUR:  One hundred hours.

45MR FITZGERALD:  Thank you, Your Honour.  If Your Honour pleases.  Your Honour, the only other matter is a 6AAA declaration.

46HER HONOUR:  In view of the imposition of a Community Correction Order, I will not be making that declaration, but, as I said, the plea has been taken into account.

47MR FITZGERALD:  If Your Honour pleases.

48HER HONOUR:  Ms Swiney, is there anything else you need to mention?

49MS SWINEY:  No, Your Honour.

50HER HONOUR:  All right.  Thank you.

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