Director of Public Prosecutions v Pennington (a pseudonym)
[2019] VCC 1700
•18 October 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FINN RICHARD PENNINGTON (A PSEUDONYM) |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 October 2019 |
| DATE OF SENTENCE: | 18 October 2019 |
| CASE MAY BE CITED AS: | DPP v Pennington (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1700 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sexual penetration of a child under 16 – Youthful offender – standard sentencing scheme pursuant to ss. 5A and 5B of the Sentencing Act 1991.
Legislation Cited: ss. 5A, 5B, 11A (4) (c) Sentencing Act 1991.
Cases Cited:R v Brown [2018] VSC 742, Boulton; Clements; Fitzgerald [2014] VSCA 342, Azzopardi v The Queen [2011] VSCA 372, R v Wyley [2009] VSCA 17, Verdins; Buckley; Vo (2007) 16 VR 269.
Sentence:Convicted and sentenced to three years and six months imprisonment with a minimum term of two years imprisonment before being eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Lee | Director of Public Prosecutions |
| For the Accused | Ms K. Ballard | Doogue & O’Brien |
HIS HONOUR:
1Finn Richard Pennington[1], on 15 October 2019 at the County Court Melbourne you pleaded guilty to one charge of sexual penetration of a child under 16 years. The maximum penalty for this offence is 15 years' imprisonment.
[1] A pseudonym name
2The offence occurred on 26 February 2019, so you are to be sentenced subject to the Standard Sentencing Scheme set out in ss. 5A and 5B of the Sentencing Act which came into operation on 1 February 2018. The standard sentence for this offence is six years imprisonment. Pursuant to s. 11A (4) (c), outlines the further provisions for standard sentences, which also applies to the non-parole period, being 60 per cent of the relevant term.
The circumstances of your offending
3The prosecutor tendered a summary prosecution opening for plea dated 23 September 2019. This document was Exhibit “A” on the plea. At the time of your offending, you were 22 years old. You are now 23 years old. Your victim, who I will refer to as “JMM” was 14 years old. At the time of the offending, JMM was attending secondary school. She resided at a DHHS residential care unit at that time. JMM and you became known to each other through mutual acquaintances and the social media platform, Snapchat. You had a Snapchat profile name and JMM had your name saved in her mobile phone as Finn Pennington.
4On 17 January 2019, you commenced contacting JMM on Snapchat. You continued to contact her until 26 February 2019. On 11 occasions you requested JMM to meet you. On 10 of those occasions she refused your request.
5On Tuesday 26 February 2019, JMM was socialising with a friend who lived close to your house. In the late afternoon JMM caught a bus from her friend's house to the suburb you live in. You sent her a Snapchat message being the address of the bus stop closest to your home. JMM took the bus and exited the bus as directed.
6At about 8 pm you called her by voice call on Snapchat to explain how to find you. You then approached JMM. You walked 10 metres in front of JMM to your house, which was captured on CCTV from a nearby home. No other person was present at your house. You led JMM into your bedroom and you told her to sit on the bed. You have then penetrated JMM's vagina with your penis. You kept penetrating her vagina with your penis and then stopped approximately three to four minutes later and ejaculated on her stomach. That is the charge of sexual penetration of child under 16.
7You obtained a towel from your bedroom chest of drawers. You wiped your penis and then JMM's genital area and her stomach. You told her to get dressed. You then told JMM not to tell anyone about what had happened, and you said, 'Leave the house and turn left'. JMM put her clothes on and left the house.
8JMM then rang her friend she had earlier visited that day. She then rang her residential care worker and asked to be picked up. JMM was upset and crying and then taken back to her residential care unit.
9On 27 February 2019, JMM disclosed your offending to her child protection worker.
10On 28 February 2019, a full medical examination was undertaken of JMM at the Royal Children's Hospital.
11On 1 March 2019, JMM completed a VARE statement at the Fawkner SOCIT Unit.
12On 7 March 2019, you were arrested at your family home. Police spoke to your mother who told them that she had warned you about having a relationship with a girl under 16 years. The police then seized your mobile phone and a green towel.
13You were then taken to the Fawkner police station and interviewed. You told the police the following things during the course of that interview:
(a) That you knew JMM via social media and that you communicated by Snapchat for approximately two months;
(b) That you told her you were 22 years old and she had told you she was 14 years old;
(c) On 26 February 2019, JMM messaged you and asked if you wanted to meet up. She said she wanted to have sex and that she wanted to lose her virginity. You told her you would contact her if the house was free;
(d) On the same day you told JMM that your house was free and arranged for her to catch the bus to your house;
(e) JMM arrived on the bus but missed the bus stop you told her to get off at. You voice called her via Snapchat and explained to her where to walk;
(f) When you saw her you just started walking to your house and she followed you;
(g) All you wanted to do was be civil and get to know her. You did not want to do anything;
(h) You went straight to your room and you put on a movie;
(i) That you had asked her what she wanted to do. She leaned over and started kissing you;
(j) You asked her for her age and from what you remembered it was 14 or 15. You said, 'This is illegal';
(k) You asked her if she was comfortable with what was going on. She said, 'I just want to have sex', and you said, 'I really don't want to. I don't want to do anything';
(l) You then went back to watching the movie. She then started kissing you again;
(m) You then said, 'I don't really want to do this', but she pulled you on top of her and she grabbed your penis and put it in her vagina;
(n) That you tried to get up and she kept on pulling you closer. It went on for around two to three minutes, you ejaculated on her stomach;
(o) That you did not use your condom. You asked her, 'With or without?', and she said, 'Without';
(p) You were in shock because you did not think that this would happen. You had never been forced to do anything really, apart from one time;
(q) You had used the towel, the two of you got dressed and then you told her how to get back to the bus stop.
(r) You agree that you were worried that she might tell someone, and you did tell her not to say anything;
(s) You did not want anything to do with her after that, so you deleted her off social media.
(t) You went and had a shower and broke down completely.
14You also told police that your mother had warned you about having relationship with young girls. Your phone was analysed but no communications were captured between yourself and JMM because you had deleted them. You have been on bail since the day of your arrest. You indicated your intention to plead guilty to this charge on 7 June 2019. Your plea is an early plea.
Victim Impact Statement
15JMM did not make a victim impact statement. However, JMM's mother did make a victim impact statement. She read the statement in open court in front of you. The text of the amended victim impact statement dated 9 October 2019 was Exhibit “B” on the plea. JMM's mother set out that JMM was diagnosed with high functioning autism, ADHD and complex trauma.
16She stated that the crime has had a devastating effect on her and her children. She spoke of the upset of attending the Royal Children's Hospital for examination of JMM after the offence. She stated she felt like a failure as a mother because of this crime. She stated how JMM spends 90 per cent of her time in a young women's secure welfare residence. JMM is separated from her younger brothers and they ask, 'When is JMM coming home?' It is clear this offence has had a significant impact on JMM's mother and the family generally and obviously JMM herself.
Personal circumstances
17You are now 23 years old. At the time of the offending you were 22 years old. You have a stable and supportive family. Your father is full time employed as a shift supervisor. Your mother has previously worked in administrative roles. You have two younger siblings. All members of your family live in the family home.
18Your entry to this world was problematic. You were born two months premature. You were born with the condition of Foetal Hydrops. This condition causes dangerous accumulation of fluid within compartments of the body. Ninety-eight per cent of children with this condition die. You were in the lucky two per cent who survived. You suffered hypoxia due to the excess fluid pressure on vital organs in other parts of your body. You had a seizure at seven days of age. There is no history of any further seizures since that early event.
19You were six years old when your younger sister was born. You had what you described to Ms Kate Gray, psychologist, as a nervous breakdown because of her birth. You were subsequently taken to the Royal Children's Hospital. It was recommended that you be assessed for autism spectrum disorder and ADHD. These assessments did not take place.
20Your time at school was marked and marred by persistent bullying. You had purple lips as a complication from your birth condition. Your ears were prominent. These physical features and your social interaction with fellow students made you a target for constant bullying for the duration of your formal education. Your main interest was playing AFL[2] football. You attended at a College located in the northern suburbs and then moved to a college in the eastern suburbs, which is a dedicated sports school. You did not complete VCAL but finished Year 12 with a leaving certificate.
[2] Australian Football League.
21Once you left school, you have had a number of short-term employment placements. At present you are unemployed and spend most of your time in your room in the family home. As you have grown older your physical appearances have normalised. Your lips are no longer discoloured. You have had a procedure to make your ears less prominent. To a casual observer, you appear to be an ordinary young man.
22For the purpose of this plea hearing you have been assessed by Ms Kate Gray, psychologist. Ms Gray's report dated 23 September 2019 was tendered on your plea. It was Exhibit “2” on the plea.
23On the second day of your plea, which is today, Ms Gray gave evidence. In her evidence Ms Gray stated she had a provisional diagnosis of autism spectrum disorder[3] for you. She stated she could not confirm the diagnosis because she was not briefed to do that assessment of you, and that she did not have, 'The kit', as she referred to it, to perform such an assessment on an adult.
[3] Referred to as “ASD”
24Ms Gray said it was a pity that you had not been assessed for ASD much earlier in your life. She was of the opinion your presentation was consistent with you suffering ASD. Ms Gray also diagnosed you as suffering from a possible traumatic brain injury[4], which she refers to as a TBI. Arising from your difficulties at birth, the Hypoxia at birth was the cause of your TBI.
[4] “TBI”
25Ms Gray's evidence was that the main deficit of social skills, that is abnormal social approach; lack of affection; not walking side by side; difficulties understanding other's thoughts, beliefs and intentions that were different from your own, was common to the TBI and the provisional autism diagnosis. Ms Gray tested you a full- scale IQ and found you to be ranked at the 39th percentile, which is in the average range as she described it in her report.
26Ms Gray assessed you as being in the moderate range for depression and anxiety. In her opinion, your level of anxiety is more than you actually realise yourself. Ms Gray stated that you were not trying to enhance your position in your responses to her questions during the course of her five-hour testing of you. She accepted your veracity. Nevertheless, Ms Gray noted that your belief of the level of your personal difficulties, is greater than the actual difficulties you face. Ms Gray says you have very low self-esteem.
27On the question of remorse for your offending, Ms Gray stated that whilst describing feelings of guilt over your offending, that you feel little remorse of any lasting nature. You place little importance on your social role responsibilities and cannot feel remorse because of it. In short, you know you have done wrong but you do not have empathy for other people and hence cannot feel the remorse for them, or your offending.
28Ms Gray also assessed you for the risk of sexual reoffending. She used the well-known psychologist's tool known as The Risk for Sexual Violence Protocol[5]. Ms Gray assessed you as falling into the moderate risk category of sexual reoffending, specifically with underage females. Ms Gray stated that at the time of your offending you were lonely, isolated and depressed.
[5] “RSVP”
29Ms Gray gave further evidence that at the time of preparing her report, which was 23 September 2019, she had not been advised of the content of the Snapchat communications from you to JMM. Ms Gray was shown those communications shortly prior to giving evidence here today and maintained her opinion that you were just trying to get to know JMM as a girlfriend and not necessarily for sexual relations when persistently sending messages to JMM, or scamming her, as it is called.
30Ms Gray also gave the opinion that imprisonment would have two detrimental impacts on you: the first, you were the type of person to be victimised in prison due to your social interaction with others; secondly, your anxiety and depression would be adversely affected by your isolation in custody. Ms Gray stated you need offence specific treatment by a qualified clinician, who understood your TBI. On any assessment she stated you were not quite right on first meeting and impressions.
Sentencing considerations
31The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it, and your personal circumstances.
32I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society.
33I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly, but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for the sentences at the time. I have considered the statistics and the current sentencing practices. I am mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another. The current sentencing practices are but one of the factors I have to take into account in fixing your sentence.
34The maximum sentence for this charge is 15 years' imprisonment. Pursuant to ss.5A and 5B of the Sentencing Act, this charge is also subject to the standard sentencing provisions. The standard sentence for this offence is six years' imprisonment. The standard sentence only takes account of the objective factors affecting the relative seriousness of the offence of sexual penetration of a child under 16. The maximum sentence and the standard sentence are to be taken into account as legislative guideposts in the sentence process.
35In s.5B (3) (b)[6], Parliament enacted that the standard sentencing provisions are not intended to affect the approach to sentencing known as, 'instinctive synthesis'. Champion J in R v Brown[7] set out that the standard sentence is not to take the predominant role in sentencing and is just one factor to take into account.
[6]Sentencing Act 1991.
[7]R v Brown [2018] VSC 742.
36It follows that the standard sentence does not assume a dominant role in the determination of the sentence for this charge. The standard sentence proscribed by Parliament for the offence is simply one of the relevant sentencing factors to which the court must have regard, along with the other sentencing factors identified which are required to be taken into account in s.5(2) of the Sentencing Act.
37Further, so far as consideration of current sentencing practices are concerned, s.5B(2)(b), requires a court when considering current sentencing practices for a standard sentence offence, to only consider sentences previously imposed where the relevant offence was subject to the Standard Sentencing Scheme. This is early days, so there is no real case to compare with your case.
38I am mindful of the provisions of the Sentencing Act and in particular s.5 (4C), which directs a sentencing court to consider whether a community corrections order can achieve the purposes for which this sentence is to be imposed. I have reviewed the case of Boulton[8] in considering if a community corrections order would be appropriate in your case. I have had you assessed for a community corrections order. You have been assessed as suitable, as you know, that is not the end of the matter.
[8]Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342.
39Your counsel, Ms Ballard, submitted in the strongest terms that your case is an appropriate case for a community correction order disposition, or a combination of imprisonment which would be a maximum of one year and a community corrections order.
40You have pleaded guilty to this charge. Your plea of guilty was indicated at an early stage. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and the resolution of the substantive issues raised by your offending. Your plea allows for the preservation of the court and police resources to deal with other matters. Your plea vindicates the public confidence in the legal process set up to protect the community.
41Your plea is also a clear acknowledgement by you, that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognised you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates some remorse on your behalf.
42By your plea, you have obviated the necessity of JMM to relive and give the evidence about your offending. This is especially significant when JMM is a very young person who suffers from ADHD, high functioning autism and complex trauma. Whilst Ms Gray's opinion is that you are unable to feel or experience remorse, I accept that you know by your plea of guilty, that JMM does not have to come to court and give evidence and that spares her from that confronting experience.
43You have no prior convictions. You are to be sentenced as a person of previous good character. A young offender is defined as being a person under the age of 21 years at the time of sentence in the Sentencing Act. I accept that you are properly described as a youthful offender. At the time of offending, you were 22 years old. You have recently turned 23. You are a youthful offender. It is a principle of sentencing law, that when a young offender such as yourself is to be sentenced, the sentencing disposition should be tailored, taking into account all other sentencing considerations to promote the offender's rehabilitation. This approach serves the interests of the individual offender and the community as a whole.
44In the case of Mills[9], which your counsel referred me to, three propositions of sentencing are set out:
(1) Youth of an offender, particularly a first offender such as yourself, should be a primary consideration of a sentencing court, where the matter properly arises;
(2) In the case of a youthful offender, rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on the rehabilitation is to be preferred. In short, rehabilitation benefits the community as well as you, the offender;
(3) A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark of what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender, and where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. The last proposition in particular, is a general principle expressed in s.5 (4) of the Sentencing Act.
[9]R v Mills [1998] 4 VR 235.
45In more recent times the Court of Appeal has made pronouncements on the consideration of youth in sentencing practices. In the case of R v Wyley,[10] Maxwell P said as follows:
'Mills constantly reminds sentencing courts and this court on appeal, that there is great public benefit in the rehabilitation of an offender and in maximising the prospect that the offender will carry on a law-abiding life in the future. But that consideration is not unique to young offenders. Nor is there any one correct answer as to how the balance is to be struck between that consideration and others which may point towards a period, or a longer period, of imprisonment, rather than a non-custodial sentence. Thus understood, the later cases of DPP v Lawrence and R v Nguyen, are not to be viewed as "excluding the principles in Mills", but simply as instances of how those principles are to be applied. As counsel properly conceded towards the end of his submissions, there is a role for general deterrence to play in relation to every class of case. In relation to certain classes of case, however, general deterrence may have a particularly important part to play. The present case is of that kind. Violence of this kind [and that is what this case is about] in circumstances of this kind, is so prevalent, that general deterrence is seen to have particular importance. But, again, the role of general deterrence will vary with the circumstances of the case'.
[10]R v Wyley [2009] VSCA 17.
46In offending such as sexual offending against a 14- year-old girl, calls for some measure of general deterrence. These issues were recently considered in Azzopardi v The Queen,[11] where Redlich JA, as he then was, and Coghlan and Macauley AJJA agreed with him, said as follows:
'The general proposition which flows from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender's youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished'.
[11]Azzopardi v The Queen [2011] VSCA 372.
47The offence of sexual penetration of a child under 16 years of age is by definition a serious offence. The seriousness of your offending is indicated by the following factors:
(a), the age difference between you and JMM was eight years;
(b), JMM was only 14 years old;
(c), you persistently pursued her on Snapchat to come and meet you;
(d), your Snapchat communications did have sexual connotations in them, indicating a level of planning by you;
(e), you knew your victim was 14 years' old;
(f), you knew and had been told not to have relationships with young or underaged girls by both your mother and your aunty;
(g), you made the arrangements to meet JMM when you knew you would be the only people in the house. Again, a level of planning by you;
(h), you did not use a condom during the intercourse;
(i), this was your first meeting with JMM in person; and
(j), your sexual encounter was quick and no overt violence was present during the course of your offending.
48I assess your offending as less than the mid-range of seriousness for this type of offence. I also assess your prospects of rehabilitation as guarded. You have the protective factors of a stable and supportive family and you have no prior convictions.
49Ms Gray has assessed you as a moderate risk of reoffending particularly with young girls, not due to any paedophilic tendencies but because young girls are less threatening to you. You continue to have the diagnosis set out by Ms Gray and you need much specialised treatment to deal with those issues.
50Your counsel relied on the principles expressed in Verdins[12] case to mitigate the sentence to be imposed upon you. Firstly, it was submitted that your moral culpability for the offending is reduced, due to your diagnosis of possible traumatic brain injury and your provisional diagnosis of autism spectrum disorder. I do not accept that your diagnosed conditions have a causal connection to your offending in this case.
[12]Verdins; Buckley; Vo (2007) 16 VR 269.
51I do accept that given the total circumstances of the offending and your response to the opportunity to have sex with JMM, do allow for some limited moderation of your moral culpability due to your compromised conditions, as outlined by Ms Gray in her evidence and her report. Nevertheless, you set up the meeting and the circumstances and you always knew JMM was only 14 years old.
52The second submission based on Verdins case was effectively two-fold. It was submitted that because of your TBI and your ASD, your time in prison will be more onerous because you will be bullied and victimised due to your social interaction habits. To quote Ms Gray, 'you come over as not quite right'.
53It is also submitted that incarceration would aggravate or cause your conditions of depression and anxiety to deteriorate. I accept that both of these limbs of Verdins case have application in your case. I base that finding on the evidence of Ms Gray. Your sentence will be moderated to reflect those matters.
54Ms Ballard also submitted that there would be family hardship if you were incarcerated in prison. I accept your supportive family will be adversely affected if you are removed from their care. The level of hardship is not of a level where it becomes a sentencing consideration in this case.
55The provisions of s.11 of the Sentencing Act set out in a standard sentencing case such as this, that the non-parole period is at least 60 per cent of the total sentence. In this case, due to the particular and unusual circumstances of the offence and matters relevant to you personally, I am going to impose a non-parole period which is slightly less than 60 per cent of the head sentence.
56The circumstances of this offence and your personal circumstances do not admit of any just sentence, other than a term of imprisonment with a non- parole period. The sentencing principles of general and specific deterrence, just punishment, denunciation of your offending and the protection of the community dictate that the only appropriate sentence is imprisonment. Hopefully, you will be granted early parole at an early time, so that the Adult Parole Board can assist you with your rehabilitation.
57Would you stand please?
58On Charge 1, you are convicted and sentenced to three and a half years imprisonment. I fix a non-parole period of two years imprisonment. But for your plea of guilty, I would have sentenced you to a period of five years imprisonment with three and a half years non-parole period.
59Pursuant to the Sex Offenders Registration Act, you are placed on that register for a period of 15 years as it is one offence of a Class 1 offence.
60I have signed the disposal order and the forfeiture orders. Is there anything else I need to deal with?
61MR LEE: No, your Honour.
62HIS HONOUR: Yes. There is a matter of the SORA. Can you get those (indistinct) please? I have placed you on the Sex Offenders Register for a period of 15 years. I am just going to have that document handed to your counsel. She can attend and explain briefly to you, what it is about. You can sign it. Ms Ballard, I am just going to have a copy of - I will note on the court order about first time in prison.
63MS BALLARD: Thank you.
64HIS HONOUR: His psychological difficulty - well, I am going to refer to them as psychological difficulties.
65MS BALLARD: Yes.
66HIS HONOUR: And I have just handed that printed copy of that report from Ms ‑ ‑ ‑
67MS BALLARD: Thank you.
68HIS HONOUR: ‑ ‑ ‑ the psychologist, Gray ‑ ‑ ‑
69MS BALLARD: Yes.
70HIS HONOUR: ‑ ‑ ‑ to this officer, but an electronic copy will go to the Corrections Centre.
71MS BALLARD: I am grateful for that. Thank you, Your Honour.
72HIS HONOUR: Yes. Just so that he is looked after.
73MS BALLARD: Can travel with him.
74HIS HONOUR: Yes.
75MS BALLARD: Yes. Thank you, Your Honour. If I might just be briefly excused from the Bar table?
76HIS HONOUR: Yes, certainly.
77MS BALLARD: Thank you, Your Honour.
78HIS HONOUR: Thanks, Ms Ballard. There is nothing further?
79MR LEE: Nothing further, Your Honour.
80HIS HONOUR: All right. Thank you, officer. Thanks for ‑ ‑ ‑
(At this stage the accused left the court.)
81Ms Ballard, Mr Lee, thank you very much for your assistance in this case. A very difficult case.
82MS BALLARD: Thank you, Your Honour.
83HIS HONOUR: Thank you.
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