Director of Public Prosecutions v Palmer (a pseudonym)

[2020] VCC 300

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM PALMER (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	18 March 2020
DATE OF SENTENCE:	20 March 2020
CASE MAY BE CITED AS:	DPP v Palmer (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 300

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Miss S. MacDougall	Office of Public Prosecutions
For the Accused	Mr T. Christin	Victoria Legal Aid

HIS HONOUR:

1William Palmer,[1] you have pleaded guilty to one charge of sexual penetration of a child under the age of 16 years, that being a course of conduct charge.  That crimes carries a maximum penalty of 15 years' imprisonment.

[1] This is a pseudonym.

2In this circumstance, it is a standard sentencing offence.  That standard sentence is six years and I will be dealing with that again in a moment.

3You are now 22 years of age.  You were 21 years of age at the time of the offending.  You pleaded guilty at the earliest reasonable opportunity and you expressed appropriate remorse in your own way and you must get the utilitarian benefit of that plea of guilty.

4It is clear from the materials that your admissions to police facilitated the fact that a course of conduct charge could be laid and I take that very much into account.

5You have no relevant prior convictions and you have no subsequent matters though you have been in custody even since you were arrested for these matters so that is probably not of great significance.

6The circumstances of the offending are that you were 21 years of age and the complainant in the matter, though from what I gather she has never complained, was 12 years of age.  At the time, she was residing between DHHS care units in both Traralgon and Sale and in the care of her father in Morwell.  You met her during November of 2018.

7In December 2018, DHHS received information that you had engaged in a sexual relationship with her and Morwell SOCIT were contacted.

8On 27 December 2018, a missing person's report was made to the Sale police station and police attended at an address in Morwell where they found the victim in the matter in your caravan at that address.  She was taken to Morwell SOCIT.  She told police she was not in a sexual relationship with you and she saw you as a big brother.  She went into detail that you had held hands and kissed as well as sleeping head to toe in your bed.

9On 14 January at approximately 1.25 pm, a Child Protection worker attended at your residence and served what is known as a harbouring notice on you that stated that the complainant was 12 years and 10 months old and it would be an offence for you to have her or conceal her.  You were clearly aware of that.

10On 1 February 2019, police members from the SOCIT attended at your address in Morwell and located the victim there with you.  You were then taken to Morwell SOCIT where you were interviewed.

11During that record of interview, you told the police that she was your girlfriend and that you had engaged in sex with her on a few occasions previously.

12You acknowledged that you knew she was 12 years of age because her friends had told you that.  That is the basis of the charge.  You told police you did not have a clue why you had sex with a child.

13On 11 February 2019, a final family violence order was made protecting the victim from you and you were listed as the respondent.  You were present at that hearing and consented to the order.

14On 17 February, you met her in Wooden Park in Morwell and engaged in sexual intercourse in the public toilet.  You made admissions in a further record of interview that you had intercourse with her again in those public toilets.  The victim had told another witness that that had occurred and ultimately on 20 February 2019, that witness was in the caravan with you and the complainant and he observed the victim putting a hand down your pants and grabbing your penis.  You made admissions again, as I said, in a record of interview that that had happened and basically you said you allowed her to do it for a few minutes.

15On 21 February, police again went looking for her and found her with you in your caravan and you were arrested.  Various charges have flowed.  There is the indictable matter of sex pen.  There are also intervention order breaches and harbouring charges which have been brought up from the Magistrates' Court and for reasons involving double punishment, I will simply be giving concurrency for each of those.

16The victim refused to provide a VARE statement in relation to the matter and has not provided a victim impact statement and essentially you have been in custody ever since and you have a total of some 393 days pre-sentence detention.

17It is a course of conduct charge and the real concern is that you persisted with the relationship even though you had been warned on a number of occasions both official and unofficially.  You were aware there was an intervention order in place and you just kept going and the objective circumstances are such that the age difference between you is very significant; 21 and 12 is a very significant difference indeed.

18In my calculation, if she was going to school which I doubt, she would have still been in Grade 6 or started Form 1 at the earliest.  Very young indeed and even you would have been aware of that.

19On the other hand, in terms of objective seriousness, there were no threats made.  I accept that she was a willing and I suspect invitational participant in all of this.  I do not regard it in any way, shape or form as predatory and there is no grooming or anything along those lines.  It is simply a circumstance where two people with very little going for them got together in the particular situation which you seemed to be unable to extricate yourself from.

20I make those comments because of the standard sentencing regime.  I am well aware of the principles in R v Brown and they can be stated in very simple terms.  A standard sentence is not be treated as the determinative figure, it does not interrupt the operation of the instinctive synthesis principle and is simply a guideline and one of the factors relevant in the sentencing process.  As I say, the objective seriousness of it is essentially because of the age difference and I then look at matters personal to you in terms of whether or - what sort of sentence to impose as it relates to that standard sentence.

21You are now 22 years of age.  You are still young.  You have been in adult custody now for over a year.  You have so far been in protection throughout that period of time at Ravenhall and I accept that you do not find gaol to be a pleasant experience at all.  You have been assaulted, you feel highly stressed in prison but you have tried to deal with it as best you can.

22I am told and I have no reason to doubt that you have been a model prisoner.  You work as a cleaning billet, you have completed courses and your counsel told me another five courses above what was contained in the submissions.

23You grew up in Latrobe Valley, you have a twin sister and an older sister.  Your parents separated when you were about seven.  You were raised by a mother and stepfather.  Your stepfather apparently had angry outbursts and the household was somewhat tense.  You are still close to your mother and have never lived independently.  At the time of this offending, you were living in a caravan in the backyard.

24You had difficulties at school.  You have a verbal learning disorder and that is consistent with those difficulties that occurred at school.

25Around 2014 upon leaving school, you delivered newspapers and pamphlets.  You had a catalogue delivery position for a couple of years.  You were unemployed for six months before the offending during which time you were helping your mother at home.  You do not have problems with alcohol, you do not have problems with drugs.  You do have ongoing stress and low mood in prison but that is understandable.  There is no other mental health history.

26You have a very limited social relationships and psychosexual history only having had one similarly aged female partner when you were 19 years of age.

27I accept the submissions put on your behalf that it occurred in the context of a co-dependent friendship which was initially at the time but very quickly became sexual and, as I have said, unfortunately, Mr Palmer, you persisted with it despite a number of attempts to stop it.  These children in the Resi units are very vulnerable whilst they often appear to be very worldly.  There is no benefit to anybody if people conduct themselves in regard to them the way that you did.

28As I have said, there is no victim impact statement and I dare say she was asked to give one and she would not have too many complaints about you but that is not what you are charged with.  It is not a rape.  It is a conscious deliberate decision to have sex with somebody well under the age of 16.

29Mr Candlish, the psychologist's report I have read says that you are still immature and you have a verbal learning disorder that I have mentioned and that you have undeveloped socially and emotional skills.  He said that you presented as an emotionally and socially immature young man and that you are and will be vulnerable in custody.

30On your release, there is still an attachment to your mother.  You do have some coping skills.  You will have accommodation available to you.  Hopefully you will have work available to you and what I am going to do is place you on a community corrections order at the completion of this gaol sentence and it will be with the understanding that you will undergo the Sex Offenders Program.  That might give you some understanding of why this sort of behaviour cannot be allowed and why it requires punishment.

31That period of time with Community Corrections will also give you additional supports within the community and it is a situation where I am not going to order work hours because you have already done almost enough gaol and it will simply be the addition of supervision and programs to reduce reoffending and mental health.

32I have had you assessed and you have been found acceptable and accordingly what I am going to do is sentence you to be imprisoned and that is to be followed by the community corrections order.

33If you agree, the community corrections order will be for a period of three years and will include the conditions I have mentioned.

34In this particular situation, because of what you have pleaded guilty to, you will be placed on the Sex Offenders Register and I must advise you the reporting conditions will be for 15 years.

35All right.  So far as you are concerned, the prospects of your rehabilitation should be pretty good.  You do not have a criminal history.  The risk of you reoffending is going to be dependent upon you getting some sense about all this and realising what you can and what you cannot do.

36So far as specific deterrence is concerned, I think this time in prison would have deterred you.  If that has not deterred you, I do not think anything will.

37General deterrence obviously must play a part that no matter how dependent two younger people become on each other, there are limits to what can occur and young men in your situation must understand that the consequences of doing it are serious.

38Accordingly, on the charge of sexual penetration, I sentence you to be imprisoned for a period of 15 months.

39I direct that 393 days be reckoned as having been served under that sentence.

40On each of the summary matters for reasons of - to avoid double punishment, I will simply give you seven days on each and they are all to be - that is for each and they are to be concurrent.  You will be then placed on the three-year CCO which will be with conviction with the conditions that I have mentioned.

41I need to do a 6AAA, do I not?  Three with a two.

42There is no other orders I have to make?  I do not think there was any other orders, was there?

43MISS MacDOUGALL:  No other orders sought.  Thank you, Your Honour.

44HIS HONOUR:  No.  All right.  Thank you for that.

45All right.  Yes, thank you for that.

46MR CHRISTIN:  As Your Honour pleases.

47MISS MacDOUGALL:  If it please the court.

48HIS HONOUR:  Yes.  You can take him now.  Thank you.

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