Director of Public Prosecutions v P J R
[2013] VCC 700
•14 May 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-00409 & AP-11-1133
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| P J R |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 May 2013 | |
DATE OF SENTENCE: | 14 May 2013 | |
CASE MAY BE CITED AS: | DPP v P J R | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 700 | |
REASONS FOR SENTENCE
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Subject: Criminal law – plea – sentence
Catchwords: Sexual penetration of a child under the age of 16 – breach of a Youth Supervision Order – young offender
Legislation Cited: s.45(1) of the Crimes Act 1958 – s.392 of the Children, Youth and Families Act 2005
Cases Cited:R v. Mills [1998] 4 VR 235 – R v. Tsiamas & Kastanis (unreported, Court of Appeal – Supreme Court of Victoria, No. 25/26 of 1997, 21 May 1997)
Sentence: Convicted and detained in a Youth Justice Centre for a period of 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P.R.M. Jones | Ms J. McLeod (Office of Public Prosecutions) |
| For the Accused | Mr I.C. Alger | Peter Baker & Associates |
HIS HONOUR:
1 In this matter Mr P J R has pleaded guilty to four charges set out on the indictment No. C13438333. Those four charges relate to, in each instance, sexual penetration of a child under the age of sixteen. Those offences having occurred on 9 December 2012, those sexual penetrations were in various forms as defined by the Crimes Act 1958. The seriousness of each of those charges is demonstrated from the fact that Parliament has prescribed a maximum penalty of ten years gaol for such offences.
2 Also Mr P J R has pleaded guilty to a breach of the Youth Supervision Order, which was imposed by my sister Judge Cotterell on 31 October 2011. This is a breach pursuant to s.392 of the Children, Youth and Families Act 2005, and in this instance the breach is by further offending, being this very offending that I am dealing with. Indeed this is the second breach of the Youth Supervision Order that has been committed by Mr P J R, the earlier non-compliance breach having been dealt with in Melbourne by Judge Cotterell on 25 July 2012.
3
Exhibit A which was tendered was the prosecution summary agreed to by
Mr Alger on behalf of Mr P J R, as being an appropriate factual summation of the circumstances. Exhibit B was the breach report, and further insofar as that breach report was concerned when giving evidence to the Court today Mr Sam Cook, team leader of the northern region referred to the MAPPS report on Mr P J R, which I also read, and that was tendered as Exhibit C, and I might say that was of very much assistance.
4 Coming to the crimes that I am dealing with, the circumstances as set out in Exhibit A demonstrate a very concerning crime. I accept from what Mr Alger says that Mr P J R is much younger, not only in looks, but in actions, than his age. Insofar as the circumstances on the night, he suggests in his record of interview that he has no memory whatsoever of these sexual actions carried out in each of these four charges.
5 While I accept that he was grossly effected by alcohol, which unfortunately is his want, and is a problem in his life, I must say I have doubts about those comments. The aggravating factor of these matters is the difference in age. The child was twelve at the time, and Mr P J R was eighteen.
6 It is of importance to remember that Parliament has prescribed this legislation, and indeed what might be seen as a strong maximum penalty, because this is protective legislation. This is legislation designed to assist and to ensure that young children are not placed in circumstances where they can be preyed upon by persons who are older than them, and where they can be manipulated. That of course was the overwhelming intent of Parliament in passing this legislation.
7 Circumstances of course which make up any crime differ dramatically, as they do in this case. As I have said, and has been put to me by Mr Alger, and I accept totally, we are dealing with a person, albeit that he was eighteen at the time, much younger than his age. He is a person much younger than that by way of look and manner.
8
Also from the facts the twelve year old in this instance appears to be remarkably precocious. She was quite active in these matters, and clearly consented to each of them, albeit that she can not consent legally. In this regard I was most assisted by the confidential sexual assault report of
10 December 2012prepared by Bendigo Health for the police.
9 One has to remind oneself that you are dealing with a person who is just twelve as a victim, however clearly she is a person even at twelve who has had much life experience, who was a more than willing participant in these activities, to the extent that Dr Lovett, who prepared this report, made some very practical and realistic suggestions as to the need for steps to be taken and procedures to be put in place to protect her. I will not go on because of her privacy to talk about what those matters were, but I agree totally with all of them.
10 Those references to a victim is because Parliament has determined a girl of that age, whatever her consensual actions, or precociousness, is a victim. It makes therefore the culpability of Mr P J R serious, and as I say in the circumstances there is a temporal age difference, albeit the actual age difference might not be as great.
11 In the plea conducted by Mr Alger, he relied very much on the report of the psychologist Ms Pamela Matthews, tendered as Exhibit 1. Such report was confirmatory of the immaturity of Mr P J R, of the greater family issues that he has suffered from in his younger life, of the residential instability that he has suffered, and in fact is still suffering, and indeed on the night of these events was in fact in accommodation provided by the Department. As is remarked by Ms Matthews that has led to a lack of supervision, and as remarked by Mr Alger in his plea that has left a young man in the community in circumstances where, to use Mr Alger's word, he was somewhat rudderless.
12 In addition to that Mr P J R has at times partaken of cannabis, and I would have thought with his psychological makeup that, Mr P J R, is one of the worst things you could do. Equally the abuse of alcohol of which you have been partaking is something that you need to keep under control.
13 Since the time of his arrest for these crimes he has been in the remand centre in custody, albeit in a protected circumstance, for one hundred and fifty-five days. Such in itself is an indictment on this community. How a person of this age, of this maturity, with these issues, can be placed in a remand centre where he is subject to the wiles of adult prisoners, baffles me. Not only has he been subjected to an assault in these circumstances, but I am told observed a suicide.
14 It has been put to me by Mr Alger that in conference with him Mr P J R has suggested that he has finally woken up to the need for him to adopt a new aspect to his life, to accept the more than willing attempts by the Department of Human Services, in particular by the workers in the northern region Loddon, to assist him. He realises the need for him to complete his schooling, and to undertake employment. I also requested that he give evidence as to those matters, and he confirmed that intent, and some fear at that stage of being sentenced to an adult prison.
15 Mr Alger also stressed the value of the plea, in the sense that if one accepts the instructions that Mr P J R had no memory whatsoever, this was a very early, valuable and clearly utilitarian plea. Given my comments insofar as the victim is concerned, it is not surprising that there is no victim impact statement tendered.
16 These cases involving a young man of whom I have just described, and is detailed in the psychologists report, and in the MAPPS report for that matter, are very difficult. Mr Alger relied upon the principles set out in R v. Mills [1998] 4 VR 235. Those principles are paramount in this Court’s determination, and indeed in this community’s views. It has been remarked on many many occasions, particularly in the Court of Appeal, that if one can take steps at this stage to try and assist a young offender, then that is very much in the interests of the community.
17 There is no person, certainly no Judge that I know, who likes sentencing young men to detention. There are some offences however that such a sentence can not be avoided. Where offences such as this, which have been committed by Mr P J R, are of such a serious nature that then a period of detention is necessary.
18 These competing principles were spoken of, in particular in R v. Tsiamas & Kastanis (unreported, Court of Appeal – Supreme Court of Victoria, No. 25/26 of 1997, 21 May 1997). Albeit a young offender, a defined young offender under the Sentencing Act 1991, you have by your plea to these four offences pleaded guilty to the commission of serious offences.
19 In the report of Ms Matthews it was suggested that you are not a paedophile. I think that is because of the issues of the age difference, and the type of crime that you have committed in this instance. However, you certainly have issues as to your sexual preferences, and this comes about from my observation of the matters involved, and the charges involved in your breach matters. As I say I was particularly assisted by the MAPPS material, and the analysis of the psychiatrist in that matter, as set out in the report.
20 As I said that report from the Royal Children's Hospital Adolescent Forensic Health Service in regard to the male adolescent program for positive sexuality was of great assistance to this Court. It was prepared by Mr Bruce Young, psychologist, who works with that organisation.
21
It remarks upon particular behaviours and particular dishonesties of yours
Mr P J R. Your behaviours are such that you bring into question not only your evidence today, which I hope is true, and I hope there was no dishonesty in what you told me, but in regard to all the steps that have been taken to assist you.
22 There was concern expressed by that organisation that because of your failure to respond appropriately that engagement with MAPPS may well be ineffective for you. Of course that's probably true if there's no cooperation from you. However the problems that are presented as I see them, not only by your behaviour in this case, which on its own probably doesn’t evidence those problems. However when married to the circumstances of your earlier cases, and the concerns about your dishonesty that have been expressed in this MAPPS report, there are serious issues that are raised about your prolectivities, your passions, and your future.
23 Because of your age it was necessary and appropriate for a further report to be prepared for me pursuant to s.32 of the Sentencing Act 1991. I thank Mr Cook not only for his evidence, but for the preparation of that report, and also the team leader. I have read that report, and as I have said today, and we have heard further from Mr Alger on this matter, such was negative. That is it was proposed as a result of the conversation you had with Mr Cook, and their determination as to your future, that you should not be admitted into the Youth Justice Centre.
24 It was suggested that the options that Youth Justice need to take into account, and the fact that due to your past attendance and engagement in the male adolescent programs, that's for positive sexuality, MAPPS, that you may well have exhausted the rehabilitation options in the youth justice system. I personally do not think that is so.
25 The view that I have is the opposite of what has been recommended. I hold that, not in any disagreement with what has been put, but I have total confidence in people such as Mr Cook, and his team leader, and in the MAPPS program, but there is a chance for you, and a proper chance for you, as long as you cooperate.
26 I find there is a grave danger in putting you in an adult situation, and I might say that I do not have the confidence that you will be appropriately delivered with a sex offender program in gaol as is suggested in the ultimate paragraph of the report.
27 It is my view that the opinion expressed in that report of both Mr Hansford and Mr Young is not correct, and I do not think that you would be suited to an adult custodial facility. I find that would be, and has the potential to be catastrophic for you. I note your own view has wavered somewhat as a result of your interview since the time we have been in Court.
28 I have no doubt that the obligations that I am required to consider under s.32(1)(a) and (b) and s.2 are established, and in the circumstances it is appropriate for you to be placed in a Youth Justice Centre. I should advise you however, although it does not appear from your history that you are uncooperative to any degree, but there is always an option of placing you upstairs pursuant to the provisions, but I am sure that you will wake up and behave yourself.
29 Insofar as the breaches are concerned you have pleaded guilty to those, and I'll deal with those as well. If you would stand please Mr P J R.
Sentence
30 On the four charges on the indictment you are convicted and detained in a Youth Justice Centre for a period of two years.
31 In regard to the breach matters I formally, as I am required as I understand it by the Act, revoke the Youth Supervision Order. I understand that such Youth Supervision Order is now expired so the full range of sentencing is open to me, and in regard to the offences, firstly in regard to each of the four charges of indecent act with a child under sixteen, I order that you to be detained in a Youth Justice Centre for a period of three months. In regard to the two offences of sexual penetration of a child under sixteen, I order that you be detained in a Youth Justice Centre for a period of twelve months.
32 Each of those sentences will begin today. If it is not obvious, I do say that they are to be served concurrently, being that the maximum period therefore that you will be detained in a Youth Justice Centre will be a period of two years for all of the above offences.
33 Pursuant to s.35 of the Sentencing Act 1991, I order that the one hundred and fifty-five days that you have served to date be deemed to be a period of detention already served, and a record of such declaration will be recorded in the records of this Court.
34 In regard to the remarks as to sentencing I am in particular appreciative of the matters mentioned in the MAPPS report. It seems to me that particular reference should be made in the sentencing remarks, to the matters spoken about, and fundamentally Mr P J R the problem of solving your issues in long term comes about as a result of your attitude.
35 You no doubt in my view have a severe problem in regard to your sexual preference, and if you do not do something about it you are going to be back here and receive a much longer sentence next time. You have got to do something about your particular passions and keep them under control, and you have got to make sure that those passions relate to adult persons not children, and/or persons who are protected by the Act.
36 However as I have said given the difficult balancing process involved, because of the various matters that relate to you, I find that can be best achieved by another attempt within the youth justice regime.
37 I declare, pursuant to s.6AAA of the Sentencing Act 1991, that for the extent that I am able to comply with the requirements of Parliament in this matter, all that I can say is that had Mr P J R not pleaded guilty I would have seriously had to consider whether a Youth Justice Centre Order would have been appropriate. I can not take it any further, it is just so unrelated to reality that requirement when you are dealing with a young offender that it is almost impossible to comply with, but we are but Parliaments servants.
38 Mr Cook you will convey my sentiments I hope and make it very clear there is no disrespect meant, I have utmost respect for the work your organisation does, and that is why I am confident that something might be done.
39 MR COOK: Yes.
40 HIS HONOUR: I am terribly concerned about putting a young man in gaol, especially this young man, and I just hope that he is not lying to us all, that he intends to change, because if he does not then next time I will be giving him a nice whack, there will not be any more youth justice.
41 Do you understand that? No more chances for you. You come back to this Court and look out. You will come back to me, all right. If you come back and I find that what you have said to me is just all rubbish then you can expect a nice whack, do you understand?
42 OFFENDER: Yes Your Honour.
43 HIS HONOUR: Mr Alger will stress that will you?
44 MR ALGER: I will Your Honour, yes.
45 HIS HONOUR: Thank you, yes, well I thank everyone for their assistance in what was a very difficult determination. Now having made that order does he go off with you Mr Cook?
46 MR COOK: No Your Honour, he will go into custody and he will be transferred.
47 HIS HONOUR: Yes, well Mr Alger, I remember a very early time when I was involved as a barrister, most disappointed when similar steps were taken and a couple of months later the young boy was in trouble again. I mean life's never certain, but I don't think Mr P J R has got the opportunity to be in trouble again, especially from a sexual nature.
48 MR ALGER: No, indeed, no I have no doubt he does understand exactly what Your Honour said to him.
49 HIS HONOUR: More than that it's the interests of the protection of the community as well.
50 MR ALGER: It's in everyone's interests.
51 HIS HONOUR: Yes, just while we're at it was there serious sexual offender matters in this, no, good. It just suddenly dawned on me, any more complications. All right, well I might stand down.
52 (At this stage the Court proceeded with another matter.)
53 HIS HONOUR: Thank you Mr Alger for your assistance.
54 MR ALGER: Thank you Your Honour.
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