Director of Public Prosecutions v Penning (a pseudonym)
[2021] VCC 62
•2 February 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RUSSELL PENNING (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 December 2020 |
DATE OF SENTENCE: | 2 February 2021 |
CASE MAY BE CITED AS: | DPP v Penning (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2021] VCC 62 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Sonnet | Office of Public Prosecutions |
For the Accused | Ms S. Lacy | Stary Norton Halphen |
HIS HONOUR:
Introduction
1Before I give these reasons for my sentence, I remind those listening that publication of anything likely to identify the victim of the offences (whom I will call 'the complainant') or her family in this case, which involves sexual offences, is prohibited by law, in particular, s.4 of the Judicial Proceedings Reports Act 1958.
2When these reasons are published, pseudonyms will be used for Mr Penning[1]’s name, the complainant’s name, the names of her family and the names of the persons giving references. This is to ensure that the identification of the complainant cannot occur.
3Mr Penning, I will say at the outset that I will sentence you in total to 10 years' imprisonment and fix a non-parole period of 6 years and 9 months. I will credit as already served the 343 days you have already incurred as pre-sentence detention. I will now explain how I arrived at these sentences.
4You have pleaded guilty to a total of eight charges: three charges of sexual penetration of a child under 12 years; four charges of sexual assault of a child under 16; and a charge of grooming for sexual conduct of a child under 16.
5Each of the charges concern the complainant. She was born on (redacted). Between 1 July and 31 August 2018, she was nine. In January and February 2020, she was 11. She has now turned 12.
6You were born on in December 1983. In July and August 2018, you were 34 and in January and February 2020, 36.
7Charges 1, 4, 7 and 8 are 'rolled up' charges. Each comprises more than one criminal act. Charge 1 comprises three separate acts; Charge 4, four separate acts, Charge 7, four separate acts; and Charge 8, three separate acts.
8The maximum penalties for these offences are: sexual penetration of a child under 12, 25 years’ imprisonment; sexual assault of a child under 16, 10 years’ imprisonment; and grooming for sexual conduct with a child under 16,
10 years’ imprisonment.[1] Russell Penning’ is a pseudonym.
9I should point out the maximum penalty of 25 years' imprisonment is the second highest maximum for an offence in this State, the highest being life imprisonment.
10All of the charges except Charge 8 are standard sentence charges. The standard sentence for sexual penetration of a child under 12 is 10 years' imprisonment and for sexual assault of a child under 16 is four years' imprisonment. I will explain the meaning of standard sentences later in these reasons.
11The circumstances of these offences are set out in the 'Summary of Prosecution Opening for Plea’, which is Exhibit A. Through your counsel, you took no issue with its contents. For the purposes of these reasons, I will summarise its contents.
Circumstances
Charges 1 and 2
12Charge 1 is a rolled up charge comprising three different acts of sexual penetration: inserting your penis into the complainant’s mouth; inserting your finger into her vagina; and inserting your tongue into her vagina. Charge 2 describes a single act.
13For Charges 1 and 2, the offences were committed between 1 July 2018 and 31 August 2018, involving the same child and at her home. She was aged between 9 and 11 and lived with her mother, step-father and brother.
14You were a long standing friend of her step-father, knowing him since high school. The offences occurred when you visited the complainant’s home or babysat her and her brother there.
15On a day between 1 July and 31 August 2018, the complainant’s mother and step-father were away from the home overnight, celebrating their anniversary. You agreed to babysit the children. You sent the complainant’s brother to his room. You and the complainant built a fort in the loungeroom using blankets. You then told her to perform oral sex on you. She refused. You threatened to pull down the fort. She went into her bedroom and watched television.
16You entered her room and penetrated her mouth with your penis. This is part of Charge 1. You were wearing a condom, which you made the complainant help you put on your penis.
17Later, the complainant fell asleep. She awoke to find you kissing her face and touching her vagina. This is Charge 2. You wet one of your fingers and put it into her mouth and then penetrated her vagina with that finger. This is part of Charge 1. You then inserted your tongue into her vagina. This is also part of Charge 1.
Charges 3, 4, 5, 6 and 8
18Charge 4 is a rolled up charge comprising four different acts of sexual penetration: twice inserting your tongue into her vagina; inserting your penis into her mouth; and inserting an object into her vagina. Charges 3, 5 and 6 describe a single act. Charge 8 is another rolled up charge comprising three different acts of grooming.
19For Charges 3, 4, 5, 6 and 8, on 18 January 2020, you again babysat the complainant and her brother. Their mother and step-father were attending a neighbour’s wedding. You offended sexually against the complainant while her parents were away from the home and after they returned. At the end, you gave the complainant a small sum of money, told her not to tell her parents and to 'keep quiet about it'. This is part of Charge 8.
20After her mother and step-father left, you held the complainant’s hand while kissing her on the face. This is part of Charge 3.
21With the complainant lying back on the couch with her legs spread apart, you positioned yourself between her legs and inserted your tongue into her vagina. This is part of Charge 4.
22During this period, you made the complainant wear black lace underwear, which you brought with you. While wearing this underwear, you again inserted your tongue into her vagina. This is part of Charge 4.
23Eventually the complainant went to bed in her bedroom. Her mother and step-father returned and they went to bed. After satisfying yourself they were asleep, you went into the complainant’s bedroom and kissed her on the lips. This is part of Charge 5.
24You and the complainant then went into the lounge room, laid on the couch and watched television. After positioning yourself and the complainant, and after instructing her to do so, you inserted your penis into her mouth over a period of about thirty minutes. You wore a flavoured condom. This is part of Charge 4.
25During this period of about thirty minutes, you inserted a pink vibrator sex toy into her vagina. This occurred over 15 minutes. This is also part of Charge 4.
26Also during this period, you made the complainant touch your penis with her hands. This is part of Charge 6.
Charges 7 and 8
27Charge 7 is another rolled up charge made up of four different acts of sexual penetration: twice inserting your penis into her mouth; inserting your tongue into her vagina; and inserting a finger into her vagina. As I said earlier,
Charge 8 is a rolled up charge comprising three different acts.28On 22 February 2020, the complainant, her mother, step-father and brother went out to dinner to celebrate her brother’s fourteenth birthday. Afterwards, you joined them back at their home. Three male friends of the step-father came to the home as did a cousin.
29The complainant’s mother went to bed. The males, including the complainant’s brother and you, played table tennis in the carport. You left the carport and entered the loungeroom, approaching the complainant, gave her $5. This is part of Charge 8. You went back and forth from the carport into the house, spending increasingly longer time in the house.
30During the night, whether in the lounge or the complainant’s bedroom, you sexually abused the complainant in four different ways. These ways constitute Charge 7.
31First, in the lounge room, while the complainant was fully reclined on the couch, you slapped her face with your penis and told her to suck your 'dick'. Although she tried to turn her face away, you inserted it into her mouth. This is part of Charge 7. You were interrupted on several occasions when someone came into the house. Each time you stopped, got up, pulled up your pants and sat down on the couch.
32The complainant’s brother was sent by the others to get you to play table tennis as it was your turn. He did this on 10 to 15 occasions. He saw you either on the couch or on about 5 occasions coming out of the complainant’s bedroom.
33Second, again in the lounge room, you told the complainant to remove her underwear, which she did. You then put your tongue into her vagina and this is part of Charge 7.
34Third, in the complainant’s bedroom, you gave her your mobile phone and instructed her to watch a pornographic video. In your temporary absence, she fast forwarded the video but saw a part which showed how to insert objects into a vagina, how to stretch a vagina and a diagram of the vagina. When you returned to her bedroom, you asked her whether she understood and then explained what the video was all about. This is part of Charge 8.
35Fourth, while the complainant was still in her bed, you re-entered her bedroom, kissed her, said you loved her and that she was pretending to be asleep. You then penetrated her mouth with your penis. This is part of Charge 7. You then wet your finger by putting it in your mouth and then inserted it into her vagina. This is part of Charge 7.
36After the step-father’s guests had left, he became suspicious of your behaviour to the complainant. There is no need to go into details except to say the step-father was so suspicious of you he stayed awake in the loungeroom for the rest of the night while you slept on the couch.
37The next day, the complainant told her mother and step-father of sexual abuse by you. They attended the Melton police station and reported the matter.
38On 24 February, the complainant made a VARE statement.
39On 25 February, the step-father engaged in what is called a 'pretext conversation'. He told you in effect the complainant said things had been happening with you for a while. You denied any offending, adding that the complainant was capable of making up allegations.
40On 25 February, after the execution of a search warrant at your home, you were arrested and interviewed. You made no admissions. The search found items described by the complainant including a vibrator and underwear. You said their presence was simply a coincidence.
41Various items were tested for DNA: five from the complainant’s bedroom; and five from your home. Except for one item, the statistical likelihood ratio is that it was 100 billion times more likely that you and the complainant were contributors.
Victim impact statements
Peterson[2]
[2] ‘Donna Peterson’ is a pseudonym.
42Donna Peterson is the complainant’s mother. Her statement, together with that of the complainant’s step-father emphasize the issue of breach of trust. You were their longstanding friend. You were a large part of their household. You were entrusted with the babysitting of the complainant. In fact, you were the babysitter of choice because you were so trusted. Because of this Ms Peterson dismissed from her mind what she perceived to be some strangeness in the behaviour between you and the complainant.
43Owing to traumatic events when she was young, Ms Peterson now feels she is a failure as a mother, in failing to protect her daughter. She suffers sleepless nights. She takes anti-depressant medicine and she receives counselling. She has removed all memory of you from the house. She believes you have robbed the complainant of her childhood.
Spivey[3]
[3] ‘Samuel Spivey’ is a pseudonym.
44Samuel Spivey has known you for twenty years. You were his friend. You were so much part of their household, he described you as part of the furniture. To him, what you did was a betrayal. It has destroyed his sense of trust in others, especially around children and including his boy. He sees himself as a failure as a parent. It has distorted his relationship with the complainant. He cannot hug her now where hugging was a normal part of family behaviour. He fears for the complainant’s future.
Complainant
45The complainant has also given a statement. It is presented in a way consistent with her age.
46Since the start of the abuse, she becomes angry for no reason. It happens with almost anyone including her parents, step-father and brother. She hates being angry but sometimes she cannot help it and cannot stop.
47She fears you. She fears your presence. Even though you have been in custody, she still looks for your presence although this is lessening. Sometimes, she fears the consequences to her and her family if you escaped from gaol. She has lots of what she calls 'bad scary' dreams about you. Mostly they are about you coming into her house and taking her away or hurting her.
48She is confused, asking herself why did you behave this way to her or even children generally. She has stopped Jujitsu because she does not like people on top of her, especially boys. Contact with boys in Jujitsu saddens her because it reminds of what you did.
49She cut her hair to look like a boy in an attempt to stop your offending, as she puts it, 'so maybe he would stop doing it because I don’t look as good as I did. If I changed my style he would stop'.
50She fears after she grows up, finds the right man, has a child or children and he does something to their child or children. She lacks trust.
51Your acts have made her feel of little value:
'He made me feel like I didn’t matter, just like a toy… a rag doll. He didn’t care if I was hurt he just did what he wanted to, wake me up, tell me what to do.'
Criminal history
52Your criminal history is confined to two appearances in the Magistrates’ Court in 2002. You were found guilty of mainly dishonesty offences. On both occasions, you were sentenced without conviction, first, to an adjourned undertaking and, second, to an aggregate fine.
Pre-sentence detention
53You were arrested on 25 February 2020 and have remained in custody since. Not including today, there are 343 days of pre-sentence detention.
Guilty pleas
54You were charged with these offences on 26 February 2020, having been arrested the day before. You appeared in court that day for a filing hearing where the proceeding was adjourned for a committal mention hearing and a direction given for the service of the prosecution’s brief of evidence upon you or your solicitors before the date of the committal mention hearing. The committal mention hearing occurred on 22 May 2020. There were further committal mention hearings on 19 June and 7 August 2020. On the last date, you pleaded guilty to charges and were committed to this court for the hearing of your plea. Between the first and third committal mention hearings, there were offers by you to plead guilty to certain charges and resolution or counter offers by the prosecution.
55Your pleas of guilty could not be said to have been made at the earliest reasonable opportunity. That would have occurred on 22 May 2020. By that date, your solicitors would have received the prosecution’s brief of evidence and taken your instructions. The time between 22 May and 7 August is about ten weeks. Given the seriousness of the charges, a period of about ten weeks is relatively brief. Although not at the earliest reasonable opportunity, your pleas came at a very early stage of the potential criminal justice process, which starts with your arrest and charging and potentially ends with a jury trial, if you had pleaded not guilty to the charges.
Personal
56You are now 37. Your parents are still alive and living together. You are the middle of three children. The eldest is Leonard[4] and the youngest, Carol[5].
[4] ‘Leonard’ is a pseudonym.
[5] ‘Carol’ is a pseudonym.
57You were raised in Epping. You attended Greenbrook Primary School and the Epping Secondary School. Your primary and secondary schooling was disrupted. You described to the psychologist, Peter Hanley, what happened at the secondary school:
'Mr [Penning] told me that the bullying became violent at Epping Secondary School, but that he never fought back and had not wished to hurt anyone. He explained that he had put on a brave face at school but cried himself to sleep at night. Mr [Penning] said he was suspended on several occasions for lighting a fire, calling teachers names, and smoking cannabis.'
58Nevertheless, you were able to complete your VCE. Although an average student overall, you excelled at Information Technology. After Year 12, you started an Information Technology course at a TAFE but stopped after three months: you lacked interest in the course and became distracted and disengaged.
59At school, you excelled at sport, particularly athletics, where you won State junior titles. When you were about 14, you won an Australia Day medal in athletics. In their letters of reference, your parents and sister speak of your sporting achievements.
60You told the psychologist, Peter Hanley, that at the ages of 11 or 12, you were sexually abused by your brother. You did not tell your parents because you did not think they would believe you. It appears they still do not believe the allegation. Nevertheless, in 2003 or 2005, you attended two sessions with a Centre against Sexual Abuse. The matter has been reported to the police. You have made a statement to the police. I do not know whether your brother has been interviewed by the police. Since Mr Hanley uses this report as one of many factors to assess your risk of re-offending[6], and by doing so, impliedly accepts the abuse as factual, I will do so also for the purposes of this proceeding. If it is a factor relevant to re-offending, it is also a factor relevant to the offending itself. However, I have no basis upon which to judge its significance.
[6] See report dated 4 December 2020 at p 10.
61As do many students, you worked while at school. From the age of 19, you have been in almost constant full-time employment in a variety of warehouse, forklift and low-skilled jobs. Recently, you were employed as a panel beater. You told Mr Hanley – 'he was ambitious about his work, and usually moved on from jobs when they became boring or if there was no possibility of promotion'.
62Your first relationship occurred when you were 19; it lasted five or six years. It ended when you had a relationship with another woman.
63You then had several short relationships until meeting Daisy[7] in 2011. It ended after two years through your disrespect for her, her miscarriage and the suicide of your best friend.
[7] ‘Daisy’ is a pseudonym.
64You started drinking alcohol at 13 or 14 and using cannabis at 13. You have continued using cannabis. You told the psychologist, Peter Hanley, you smoked cannabis 'morning and night' and you were constantly 'stoned'.
65Since you were 18, you have used a variety of other drugs from time to time. You started using methylamphetamine in 2012, stopped in 2014 with a brief relapse in 2017.
66Even though only 37, you have experienced other distressing events: the death of your aunt and cousin in the 2009 Black Saturday bushfires; the miscarriage of your former partner in 2010; the suicide of your best friend in 2011; the death of three grandparents between 2015 and 2018; and, in June 2020, the heart attack suffered by your father. You believe your arrest over this matter had something to do with your father’s heart attack.
67Since 2016, you have lived with one of your aunts. You moved there to escape an environment where methylamphetamines were used. Ultimately, you were successful in avoiding the use of methylamphetamines.
68As at the time of your arrest, you were living with your parents.
References
69I have had regard to the references written about you.
Carol Penning
70Carol Penning is your younger sister. She has had regular contact with you over the years, including after your remand into custody. You had close contact with her son, John[8]. To her, you are remorseful for your offences.
[8] ‘John’ is a pseudonym.
71She tells me something of your background. When you were young, you were a very good athlete, holding State junior records in sprints and the long jump. In 2000, you competed in the Pacific School games. As is usual for someone who is good at one sport, you were also good at other sports, hockey and football.
72She says, you were always willing to help people.
Gail Terry[9]
[9] ‘Gail Terry’ is a pseudonym.
73Gail Terry has known you for twenty years. You and she went to the same school.
74She knows you as a caring and friendly person. To her, you are an 'uncle figure' to her children. Her children adore you. Despite these revelations, and surprisingly, she would still trust you around her children.
Kyle and Rosa Penning[10]
[10] ‘Kyle’ and ‘Rosa Penning’ are pseudonyms.
75Kyle and Rosa Penning are your parents.
76They also talk of your success at sport, both athletics and field games.
77They note your loss of your best friend in 2011 through suicide and your feeling of guilt through feeling you could have done more to save him.
78They speak positively about you: your 'can do' attitude; and your easy going attitude. You make friends easily.
79They believe you are very remorseful for your offences.
80They point to the hardship your offending has caused you: loss of a job; loss of your financial stability; loss of home; and the loss of all of your friends except your immediate family and Ms Terry.
Psychologist
81Peter Hanley is a psychologist. At the request of your solicitors, he interviewed you on 18 September and 18 October last year. His report, dated 4 December 2020, was admitted into evidence. As is usual for these types of reports, it is highly detailed.
82At paragraph 30 of the report, Mr Hanley quotes what you told him was the motivation for your offending:
'It was the control factor. I was in charge of what was happening. She would do anything I would say in a way. It was all about me. I could manipulate the situation for my benefit. It disgusts me that I had those feelings and let that happen. Why didn’t I stop myself? I want to learn how I can stop this from happening.'
83Mr Hanley diagnosed you as suffering from three recognised psychological disorders, two of which related to your use of drugs.
84First, noting in particular your sexual arousal and engagement in sexual activity with a prepubescent child over 19 months, Mr Hanley diagnosed you as suffering from Paedophilic Disorder, nonexclusive type, sexually attracted to females.
85Second, he diagnosed a severe Cannabis Use Disorder. This disorder was in early remission because you are in custody.
86Third, reviewing your past history, he diagnosed a severe Stimulant Use Disorder. This disorder was in sustained remission, partly because you are in custody.
Assessment
87Mr Hanley was asked by your solicitors to look at your risk of sexual
re-offending. To him, this involved examining three factors, which he described as stable or static, dynamic and protective. For his assessment, he used a tool called STATIC-99R and another called 'Risk for Sexual Violence Protocol.' Overall, he considered you are a moderate to high risk of re-offending sexually or, put another way, your risk of such re-offending is higher than that of a typical sex offender undergoing sentence. However, Mr Hanley added[11]:'The presence of multiple dynamic risk factors, no evidence of problems with supervision, and his potential for responding to treatment intervention suggests that treatment which effectively addresses the identified risks factors is likely to reduce Mr [Penning]’s risk of recidivism.'
[11] At [46].
88Mr Hanley recommended the following by way of treatment:
(a)specialised sex offender treatment focussing on developing your insight into your offending behaviour, addressing deviant sexual fantasies, improving your interpersonal and coping skills and relapse prevention training.
(b)Implicitly, Mr Hanley sees your drug addictions as a factor in your offending. He considers you will be an elevated risk of drug relapse upon release from prison. He recommends you receive supervised drug counselling with a focus on relapse prevention. These measures should reduce the risk of you resuming the use of drugs.
Discussion
Rationale for the offence and penalty:
89The law absolutely prohibits the sexual activity of an adult with children under 12. It presumes they will suffer harm, physical and psychological, and the effects of the harm will be long term and serious[12]. One of the cases referred to me was DPP v Aneterea, where the sentencing judge said[13]:
'…there is a strong presumption of harm to children from sexual offending against them. Sexual offending against children undermines their sense of self. It leads children to blame themselves for acts committed against them by adults, for those acts which they are completely innocent and completely without blame. The courts hear time and time again of the lives that have been shattered by the impact of sexual offending upon children.'
[12] Clarkson v R (2011) 32 VR 361 at [33].
[13] [2019] VCC 1721 at [51] per Judge Higham.
90As the Court of Appeal said in DPP v Amaral (a pseudonym)[14]:
'As this Court has often said, sexual abuse of children by those in positions of trust or responsibility with respect to them calls for severe punishment.'
[14] [2020] VSCA 290 at [33].
91Although the charges of sexual penetration of a child under 12 is a Category 1 offence, no one submitted a sentence other than imprisonment was appropriate.
92Section 5(1) of the Sentencing Act 1991 sets out the purposes for which sentences are imposed. There are five individual purposes but a sentence may be imposed using a combination of two or more of those purposes. Briefly, those purposes are:
-to punish you to an extent and in a manner which is just in all of the circumstances;
-to deter you and other persons from committing offences of the same or a similar character;
-to establish conditions within which your rehabilitation may be facilitated;
-to manifest the Court’s denunciation of the type of conduct in which you engaged;
-to protect the community from you.
Deterrence
93My sentence must deter you from repeating this behaviour. This is called specific deterrence. It might be thought you may never again have the opportunity to repeat this behaviour. I am not to know that. My sentence must deter you from behaving in this or a similar fashion again.
94My sentences must also deter others from behaving in the same or somewhat similar manner to you. This is called general deterrence.
Denunciation
95It goes without saying how much the community abhors your kind of offending. It is reflected in the maximum penalties for the offences, the existence of standard sentences for seven of the eight offences to which you have pleaded guilty and the serious sexual offender provisions to which I will refer shortly. The sentences I impose must manifest a denunciation of your conduct.
Rehabilitation
96You have the support of your parents and sister. You have a long history of employment and want to re-enter the workforce after your release from custody.
97You are a moderate to high risk of reoffending sexually. There is nothing in your criminal record which throws light on your capacity to be supervised. But while on remand, you have participated in individual counselling regarding your drug addiction. No doubt, you will join in other programmes while in custody. You may well respond positively to counselling and treatment for your sexual offending and drug addiction, gaining a full understanding of the damage your actions have caused to the complainant and her family. Judging from your comments to Mr Hanley, you have already gained some understanding of the damage[15].
[15] At [31].
98The central feature in assessing your prospects of rehabilitation is Mr Hanley’s assessment of the risk of re-offending sexually. If released immediately, you would be likely to re-offend sexually. To effectively treat your paedophilic disorder will be a long process. However, Mr Hanley notes counselling and treatment may reduce that risk. I have noted the support of most of your immediate family. The support of your parents is particularly significant given you lived with them before your arrest. You are genuinely remorseful. Your pleas of guilty show you have accepted responsibility for your crimes and your willingness to aid the course of justice. In so far as these matters are relevant to the issue of rehabilitation, your prospects are good.
99Under s.5(2) of the Sentencing Act 1991, there are twelve factors to which I must have regard in sentencing you. However, not all of those factors are relevant in your case.
Gravity
100The gravity of your offending is serious. You used the complainant for your sexual gratification. I accept the prosecutor’s categorisation of their gravity of at least mid-range.
101There are a number of offences included in the eight charges. The charges of sexual penetration are rolled up charges and include several acts in each charge. These acts involve different forms of penetration. The charges of sexual assault involve different acts. The offences were committed on three separate occasions over a period of 19 months when the complainant was aged between 9 and 11. You, of course, were very much older, 24 to 25 years older.
102You committed grave breaches of the trust the complainant and her family had in you. You were a longstanding friend of the complainant’s father. You were very much seen as part of their family. The mother and step-father entrusted the care of the complainant and her brother to you in their absences. The offending occurred in her bedroom and elsewhere in her home. Anybody is entitled to feel safe in their own home.
103On one view, some of your offending was brazen. Charges 4 and 5 were committed while the complainant’s mother and step-father were asleep in the house while Charge 7 was committed when other people were nearby playing table tennis. It is indicative of the risks you were prepared to take to satisfy your sexual gratification. This kind of risky behaviour is not uncommon where sexual offences against children are involved. It makes the task of proving offences more difficult for it is said no one would behave in that fashion in those circumstances. It adds weight to your pleas of guilty.
104There was a degree of premeditation involved in some of the offences. The most striking example was your bringing black lace underwear to the complainant’s home so you could dress her in them.
105Charge 4 was not committed briefly but took about 30 minutes.
106As often happens, you tried to keep the complainant quiet about what had happened: by telling her not to tell; and by giving her money. As your counsel submitted, I should be careful in my use of you giving the complainant money given that that fact is part of Charge 8, the charge of grooming.
107As is clear from my summary of the statements of the complainant, her mother and step-father, your offences have had a profound impact on them. The complainant is still only 12. Her statement raises issues no 12 year old should ever contemplate. I would say she will suffer serious long-term effects of your offending.
108Despite Mr Hanley diagnosing three recognised psychiatric or psychological disorders, it is not submitted any of the principles in R v Verdins[16] applies in your case and correctly so. Nevertheless, their existence is a matter I must consider. Your moral culpability is very high. You used the complainant as an object of sexual gratification. You paid no regard to the effect of your behaviour upon her. I have already quoted what you told Mr Hanley was your motivation for the offending.
Guilty pleas
[16] (2007) 16 VR 269.
109I have already spoken about the timing of your pleas of guilty. The timing is something the law requires me to consider in determining my sentences.
110First, your pleas have what is described as 'utilitarian' benefits. Examples of those benefits are the saving of the cost and inconvenience of a trial. It also assists the criminal justice system by enabling cases where there is a contest to be heard sooner than would be the case. Moreover, during the emergency created by the pandemic, a plea of guilty helps a system which had stagnated and was taking faltering steps towards normality. It deserves additional weight for that reason. Further, it spares the complainant and her family from the ordeal of giving evidence in a trial.
111Second, from your perspective, they are evidence of your genuine remorse or contrition. In this context, your remorse translates into your determination not to re-offend in this manner again. They show your acceptance of responsibility for your criminal behaviour towards the complainant. They also show your willingness to facilitate the course of justice.
112I do not consider the strength of the prosecution case, especially the DNA evidence, against you diminishes the fact of your remorse, acceptance of responsibility or willingness to facilitate the course of justice.
113Overall, your pleas of guilty entitle you to a substantial discount on the sentence I would otherwise have imposed if you had pleaded not guilty but had been found guilty after a trial.
Previous character
114Your counsel submitted the lack of actual convictions enabled you to rely on your previous good behaviour as a mitigatory factor. I do not accept that submission. Even though the penalties suggest modest offending, you were found guilty of criminal offences. Second, it has been pointed out to me your use of illicit drugs over many years, amounting to an addiction to cannabis, which continued up to your arrest. I will give no discount in relation to previous good character.
COVID-19
115You were remanded into custody before the restrictions caused by the pandemic. For almost all of your time in custody, you have not had visitors. Apart from an initial drug course, you have been denied the ability to undertake courses. You have had contact with your family by phone, audiovisual link and by mail.
116I accept much of your period in custody has been more onerous than before the outbreak of the pandemic. Although the restrictions are lessening, they remain and will adversely impact upon some of your further time in custody. This is a mitigatory factor.
Current sentencing practices
117The prosecutor referred me to seven sentences of judges of this court concerning the offence of sexual penetration of a child under the age of 12[17]. These sentences were imposed after the offence became a standard sentence offence. Where available, I have read those sentences. As far as I can see, they do not disclose a current sentencing practice for that offence because there are too few instances somewhat approximating the circumstances of your case.
[17] There was no published reasons in respect of one case.
Standard sentences
118As I said, all of the charges except Charge 8 are standard sentence offences.
119Where an offence is a standard sentence offence, the standard sentence for that offence is the period stated as such. For the offence of sexual penetration of a child under 12, the standard sentence is 10 years' imprisonment. For the offence of sexual assault on a child under 16, it is 4 years' imprisonment.
120The standard sentence is the sentence in the middle of the range of seriousness for that offence after taking into account only the objective factors affecting the relative seriousness of the offence.
121The objective actors affecting the relative seriousness of an offence are to be determined without reference to matters personal to you or to a class of offenders and wholly by reference to the nature of your offending.
122Under s.5(2) of the Sentencing Act 1991, I must have regard to twelve factors in sentencing you, one of which is the standard sentence for the offence. No one factor has dominance over another. Similarly, the standard sentence does not occupy any special place amongst those factors. It represents a guidepost. It is not a starting point from which a sentence is fashioned, whether longer or shorter than the standard sentence. It does not affect the process of instinctive synthesis which I must undertake to determine the appropriate sentence for you. It is a guidepost in the same way that the maximum penalty for an offence is a guidepost.
Serious offender
123Once I sentence you to imprisonment on Charges 1 and 2, you are, and I must declare you to be a 'serious offender' for the remaining charges. As a serious offender where a sentence of imprisonment is justified, I:
(a)must regard the protection of the community from you is the principal purpose for which the sentences of the remaining charges are imposed[18];
(b)may, to achieve the purpose of protecting the community, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances[19]. The Crown does not seek disproportionate sentences and, in my opinion, it is correct in not doing so;
(c)unless I direct otherwise, each sentence of imprisonment on Charges 3 to 8 should be served cumulatively on the other sentences[20].
[18] S 6D(a).
[19] S 6D(b).
[20] S 6E.
Totality
124Your counsel stressed the need for me to pay regard to the principle of totality in the context of those statutory provisions dealing with the sentencing of these offences. I am referring to the standard sentence scheme and the serious offender provisions. The Crown agreed the principle applied.
125The principle is explained in DPP v Jones[21]:
'After the sentences for each individual charge have been arrived at, the totality principle requires the sentencing judge to have regard to the aggregate sentence that should be imposed to reflect the totality of the criminal conduct. A sentencing judge, having imposed proper individual sentences on each count, and having arrived at orders to effect cumulation or concurrency as between individual sentences, must then stand back and examine the total effective sentence to ensure that it reflects the overall criminality for which the offender is being sentenced and so as to ensure that it is not crushing…'
[21] (2013) 40 VR 267 at [90].
Sentence
126Charge 1: this is a charge of sexual penetration of a child under 12. It is a rolled up charge consisting of three instances of sexual penetration occurring on the same occasion: I will sentence you to seven years' imprisonment. This is the base sentence.
127Charge 2: this is a charge of a single act of sexual assault occurring during the same course of events which gives rise to the acts of sexual penetration in Charge 1. It involves kissing the victim’s face and touching her vagina: I will sentence you to one years' imprisonment;
128Charge 3: this is a charge of a single instance of sexual assault occurring on the same occasion as Charges 4, 5 and 6. It involves holding her hand and kissing her: I will impose a sentence of 6 months' imprisonment;
129Charge 4: this is a charge of sexual penetration of a child under 12. It is a rolled up charge comprising four instances of sexual penetration: I will sentence you to seven years' imprisonment;
130Charge 5: this is a charge of sexual assault of a child under 16. It involves kissing of the child on her lips: I will sentence you to 6 months' imprisonment;
131Charge 6: this is a charge of sexual assault of a child under 16, involving you making the child touch your penis with her hands: I will sentence you to one years' imprisonment;
132Charge 7: this is a charge of sexual penetration of a child under 12. This is another rolled up charge involving four acts of sexual penetration: I will sentence you to seven years' imprisonment;
133Charge 8: this is a charge of grooming for sexual conduct with a child under 16: I will sentence you to 12 months' imprisonment.
134As I said the sentence on Charge 1 is the base sentence. Eighteen months of the sentences on each of Charges 4 and 7 will be added to the base sentence. The remaining sentences will be served concurrently. This gives a total effective sentence of 10 years' imprisonment.
Standard sentence
135Returning to the standard sentences, the sentences I have impose on Charges 1 to 7 are lower than the standard sentence for each of those offences. In arriving at the appropriate sentences, I have considered, among other things, the serious nature of your offending, your high degree of culpability, your pleas of guilty and your prospects of rehabilitation.
Non-parole period and standard sentences
136A non-parole period is the minimum length of imprisonment that justice requires you to serve. However, under the standard sentence scheme, I must fix a non-parole period which is at least 60 per cent of the total effective sentence unless the interests of justice require me to do otherwise. The interests justice require me not to fix a non-parole period of less than 60 per cent. However, a non-parole period of 60 per cent is too short in the circumstances. I will fix the non-parole period at 6 years and 9 months imprisonment.
Pre-sentence detention
137I declare the period of 343 days of your pre-sentence detention is a period of imprisonment already served under this sentence with that period excluding today.
Section 6AAA
138But for your pleas of guilty, I would have imposed a total effective sentence of 14 years and four months' imprisonment with a non-parole period of nine years and eight months' imprisonment.
Sex Offenders registration
139Due to my sentences, you are a registrable sex offender. You will be required within seven days of your release from custody to report your personal details and begin a regime of annual reporting as required by the Sex Offenders Registration Act and be otherwise subject to that Act for the rest of your life. Since you are appearing by way of an audiovisual link, I do not require you to sign the acknowledgment of receiving the form. The form will be given to you through Corrections Victoria.
Forfeiture
140I will forfeit to the Minster the items set out in the Schedule to the draft Forfeiture Order.
Serious offender
141And finally, or the sentences on Charges 3 to 8, I direct that there be entered in the records of the court in respect of each of those offences that you were sentenced as a serious offender.
142Mr Sonnet and Ms Lacy, are there any other matters you wish me to address?
143MS LACY: No, Your Honour.
144MR SONNET: No, Your Honour.
145HIS HONOUR: All right. As I said at the outset, I will have these reasons published but there will be extensive use of pseudonyms. And I obviously will make arrangements for a copy to be sent to the Crown and to the lawyers for Mr Penning.
146In particular, when we use the audiovisual links it may be that all of what I read out and said may not have come clearly through to those listening. I hope it did.
147Ms Lacy, we have still got the use of an audiovisual link. Do you want to use that link to speak to Mr Penning in the absence of the rest of us?
148MS LACY: Yes, just briefly if I could. But perhaps my instructor, Ms Conwell, could remain in the room too.
149HIS HONOUR: I am sure that can be arranged. All right, if that be the case then I will ask my tipstaff to adjourn the court and I will ask both my tipstaff and arrange that Ms Lacy and her instructor can speak with Mr Penning using this audiovisual link.
150MS LACY: May it please the court.
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