Director of Public Prosecutions v Peterson (a pseudonym)

[2019] VCC 1902

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

HARRISON PETERSON[1] (a pseudonym)

[1] Matter anonymised to protect the identity of the Victim

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 November 2019
CASE MAY BE CITED AS:	DPP v Peterson (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1902

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	Ms K. Mildenhall
For the Accused	Mr T. Schocker

HER HONOUR: 

1Harrison Peterson[2], you have pleaded guilty to one charge of sexual penetration of a child under the age of 16 and one charge of indecent act with that child. 

[2] Pseudonym used.

2That child was 15-year-old Charlotte Anh[3], a young person who was a cello student of your wife.  Charlotte Anh had come to live with you and your wife as a result of her dysfunctional family situation.  You offended against her several times within months of her moving into your home and over a period of approximately three months. 

[3] Pseudonym used.

3The charges to which you have pleaded guilty are representative charges of three occasions of sexual penetration and two occasions of indecent act with a child.

4In more detail, your offending is as follows: 

5At the time of the offending in 2012, you were 28 years old.  Charlotte was 15 years and approximately one to three months. 

6She was born in Vietnam and emigrated to Australia with her mother when she was a 12-year-old in 2010.  She enrolled in Bulleen Grammar[4] in January 2011 in Year 8 and at that time, she had limited English skills.  She developed a good relationship with your wife, Elizabeth[5], who was her cello teacher. 

[4] Pseudonym used.

[5] Pseudonym used.

7In 2012, when Charlotte was in Year 9, she was involved in the school production and your wife was the producer.  On one occasion, your wife drove her home and Charlotte confided to her about her difficulties at home, including the fact that she and her mother needed to move out and they had limited options about where they could live.  This may have meant a change of school, or leaving school altogether to support her mother. 

8Your wife and a school counsellor had a meeting and your wife volunteered to allow Charlotte to move into your home.  She did so around 20 July 2012, at a time when she was 14 years old.  She remained living with you for approximately six months.  That is, until mid-December 2012.

9During the time she lived with you, her mother signed over permission for you and your wife to effectively act as her guardians.  That is, you and your wife would sign Charlotte's permission forms, feed her, drive her, pay for cello lessons with a colleague of your wife's.  Effectively you and your wife were acting in loco parentis.  Charlotte developed a good relationship with both of you. 

10Charlotte turned 15 on 9 September 2012.  The offending against her occurred between October and December 2012. 

11Charlotte says she initially spoke to Elizabeth and spent time with her, having grown up mainly around females.  However, during that period where she was living with you, there were times when your wife, Elizabeth, was either working long hours, or away at her parents' address.  Charlotte says you and she would talk for hours.  She felt she could trust you and share her secrets with you.  You were aware of her dysfunctional family situation, including her difficult relationship with both her mother and her estrangement from her father.  She also told you about a previous sexual assault of her by a basketball coach in Vietnam. 

12On one such occasion of a long talk with her in October when you were home alone with her, she sat on the floor wearing her school dress and jumper. 
You touched her lower leg and caressed it as she sat with you.  That is an uncharged act. 

13Later that same evening, she changed into pyjamas and you put your hands up the leg of her pants and touched her leg again.  You asked her if it felt bad and she said, 'No', so you continued to touch her from her ankle to her inner thigh.  That is another uncharged act.  She told you it was tickling her.  You stopped, but started again in a different position.  At some point she went to bed. 

14On another occasion in October 2012, Charlotte had been in trouble at school.  Your wife was not home for the night and Charlotte wanted to talk to you about what had happened at school.  You invited her into your bedroom and you both lay on the bed.  You asked Charlotte if she wanted to learn how to kiss and she said she did.  She said she felt close to you, because you had spent so much time talking to her.  You kissed her and gave her instructions about how to kiss.  You lay on top of her on the bed, kissing her.  She started to talk about her feelings about the events of the day at school, however you told her to be quiet and continued to kiss her.  That is another uncharged act.

15You asked her what she wanted for the night.  She told you she did not want anything.  You told her you wanted nothing, except to make sure she was all right.  You then started touching her breasts, before you put your hand into her pants and touched the outside of her vagina for a few minutes.  Those are uncharged acts.

16You then touched her clitoris.  That is part of the representative Charge 1, sexual penetration of a child under 16.  You asked her if she had ever had an orgasm and told her not to be ashamed.  She says she asked you what an orgasm was and you told her.  She was concerned you were married.  You touched her clitoris until she had an orgasm. 

17She slept in your bed that night with you and the next morning, you drove her to school.  During that car trip, you told her that other people would not understand what had happened and that it should stay between you. 

18Charlotte attended cello lessons with a colleague of your wife's on a regular basis in Heathmont, while she was living at your house.  You would occasionally collect her.  On one such occasion in November 2012, either in your car near a park in Ivanhoe on the way home, or after you had come home from collecting her, you kissed her and digitally penetrated her vagina.  That digital penetration is also part of the representative charge of Charge 1.

19You then showed her how to masturbate your penis, which she did.  That is part of the representative Charge 2, indecent act with a child under 16.

20On another occasion, your wife was not at home for the evening, as she was working on the school production.  Charlotte was talking to you about her feelings regarding moving back home to live with her mother.  You and Charlotte kissed and you touched her breast.  Those are uncharged acts.

21After dinner you sat on the couch together and you watched a Star Trek movie.  You invited Charlotte to have a shower with you, but she declined.  Later you got into your bed with her.  You digitally penetrated her.  This is part of the representative Charge 1 of sexual penetration.

22She then masturbated your penis, which is part of Charge 2, indecent act with a child.

23The Crown have nominated this event as the event on which you fall to be sentenced in relation to both Charges 1 and Charge 2. 

24Charlotte moved out of your home in mid-December 2012.  There was limited contact between you for a period of time.  You and your wife were, by then, expecting your first child.  However, you and your wife continued to play a significant role in Charlotte's life throughout her VCE and into her first year of university. 

25After Charlotte had turned 16, you commenced a sexual relationship with her and this progressed to other sexual acts in the years after she had turned 16 and in an ongoing way when she was a 17 or 18-year-old.  Once she was 16, she was capable of consenting and therefore any sexual activity from that time was lawful.  Your relationship with Charlotte ended when it was discovered by your wife in June 2016.  You are not to be sentenced in relation to your ongoing relationship with her.  I will return to that.

26Charlotte rang you as part of a pretext call set up by police on 9 March 2018.  You and she discussed your relationship, both your ongoing affair with her and also in general terms, events which occurred when she was living with you as a 15-year-old. 

27On 24 May 2018, you were interviewed by police.  You answered all questions put to you, despite legal advice to make 'no comment'.  You denied any acts of penetration when she was living at your home, however you admitted to kissing her and ‘dry humping’ her during that period of time. 

28It is trite to say these are serious offences.  Considerations of punishment, denunciation, deterrence and community protection must be at the forefront of my sentencing considerations.  The maximum penalty for sexual penetration of a child under 16 years is 15 years' imprisonment and for indecent act with a child under 16 years, 10 years' imprisonment.  Once sentenced, you will be registered as a sex offender for a mandatory period of 15 years.

29In assessing the seriousness of your particular offending, I take into account the following matters:

30This was a most serious breach of trust of your role as a guardian and father figure to her.  You breached not only Charlotte's trust, but her mother's, your wife's and the school who placed her with you.  You used her for your own sexual gratification, manipulating and confusing her emotional attachment to you. 

31At the time of your offending, the legislature saw fit to include in Charge 1,
the fact that you were in a position of care, supervision or authority, as an indication that sexual offending against a child in those circumstances carries a particular level of gravity.  That is, of course, due to the egregious breach of trust which occurs in such a situation. 

32Charlotte was a particularly vulnerable young girl.  She was a recent immigrant to Australia and says that when she moved in with you, 'I was so shy and my English wasn't very good at that time.  I felt awkward at the start.'  You knew her family life was dysfunctional and you were aware of her difficult relationship with her mother and her estrangement from her father.  She had also disclosed to you a previous sexual assault against her by a basketball coach in Vietnam. 

33In Episode 2, she was wanting to talk to you about a difficulty at school, but you hushed her so you could continue kissing her.  In Episode 3, she had disclosed to you her difficult feelings about returning to live home with her mother. 

34There was an age disparity between you of some 13 years.  Although she was at the upper age range for this offence, she was clearly a naive young girl. 
The fact you asked her whether she wanted to learn how to kiss and whether she had ever had an orgasm, demonstrates your knowledge of that fact. 

35The offending in Charge 1 involves penetration of her vagina.  Although it was with your finger, higher courts have said digital penetration should be treated in a similar way and similarly seriously as penile penetration. 

36Your offending against her was repetitive.  That is, these are representative charges.  Regarding Charge 1, it is representative of three occasions of digital penetration and regarding Charge 2, it is representative of two occasions when you had her masturbate you. 

37The sentence I impose on you is for the one event which occurred in your bed on night you had watched the Star Trek movie.  It is one charge of sexual penetration which relates to digital penetration of her and the one charge of indecent act which relates to her masturbation of you. 

38I take into account the principles of sentencing for representative charges,

[6][2019] VSCA 30

as outlined in the recent decision of the Court of Appeal in Crouch (A Psuedonym) v The Queen[6], namely that you are not to be sentenced for those additional events, however, that I should take them into account in assessing the wider context of your offending and in that sense, they preclude you from any claim that this was a one-off aberration.

39I take into account also the uncharged acts of caressing her leg, touching her breasts on occasions and kissing her, as part of the full context of the offending. 

40The repetition of offending here, although a low number of repeated events, does increase your moral culpability.  It is relevant to my considerations of the need for specific deterrence and the need for community protection. 

41You silenced her, not by threats, however by telling her that people would not understand what had happened and that it should stay between you.  She did not tell anyone until years later when she was an adult.  Delay in complaint is a common feature where there is sexual offending against a child.  In my view here, it is a reflection of the power imbalance between you and also her confusion about what had occurred. 

42I accept that the offending here was situational.  That is, you did not create the situation whereby she lived in your home, nor did you pursue your unlawful sexual relationship with her when she moved out of your home in December 2012.  There was in fact a lengthy break in contact once she moved from your premises. 

43I do not accept, however, that is was opportunistic, given the existence of uncharged acts which occurred in the lead-up to the actual offending and given the repeated offending against her.  There was time for you to desist, had you wanted to.  Charlotte's comments in her victim impact statement that, 'It was not bound to happen, you made it happen, because you made a series of decisions', in my view, is entirely accurate. 

44You acknowledged in the pretext call that you took advantage of her and manipulated the situation.  You acknowledged that her issues with her family made her extremely vulnerable to that manipulation. 

45These courts and the community now well understand the impact of sexual offending on children.  It is inherently damaging and exploitative.  The impact is often, as here, profound and long-lasting, even where there is no overt physical coercion.  Indeed it is, in part, that subtle manipulation which has created for the victim here, a level of self-doubt in her connections with others and a lack of trust and confusion in her relationships. 

46She read in court a detailed an eloquent outline of the resulting impact of these events, as well as your ongoing relationship with her have had on her life. 
I have also received reports from her treating psychologists. 

47Charlotte talks of her complicated feelings towards you.  She described you as one of the two people she had trusted most.  She felt it was her fault that you assaulted her and that she was responsible.  She talks of panic attacks, of crippling anxiety and sleeplessness, of the resulting impact on her university studies and her employment and the fact that she is not where she thought she would be professionally at this stage of her life.  She describes her difficulties in relationships with trusting another person. 

48I am very conscious that the impact of your sexual behaviour on Charlotte is complicated by the ongoing relationship you had with her.  Although not unlawful, it occurred when she was young and she says, still under your guidance and influence.  You carried on that relationship outside your marriage and when it was discovered, Charlotte lost contact with your wife, Elizabeth, with whom she was also very close.  That and the associated guilt for her has had its own significant impact. 

49A portion of the victim impact statement therefore, relates to events of that ongoing relationship, both in terms of sexual activity and of the discovery and fallout afterwards.  I do not take that relationship into account in any way in my assessment of your offending.  It does not aggravate your offending, because it occurred at a time when she was lawfully able to give her consent.  There was a clear temporal and situational break between this offending and that relationship.  It has been led only to provide the true circumstances of the situation and it goes some way to explaining some of the impact on the victim which she described. 

50So although it is not entirely possible to disentangle the impact of your offending from the impact of your ongoing relationship with her, you are not to be sentenced for the latter, given she was of an age where she could legally consent. 

51I can and do, however, take into account that your offending against her in your home when she was living with you as a 15-year-old, has been significant and lasting.

52Turning to your personal situation and history.  I have received and read in detail a number of documents which outline your personal history, in particular, your counsel's submissions, as well as reports from clinical and forensic psychologist, Patrick Newton, dated 23 October 2019, your treating clinical psychotherapist, Gena Fawns, dated 28 October 2019 and a number of testimonials from your brother and other persons who have known you for some time. 

53Your history is as follows: 

54You are the oldest of three children, born in Sydney and you grew up in various locations around New South Wales.  Your father was a Vietnam veteran. 
He worked as an electrician with the Snowy hydro scheme and your family moved several times on his account. 

55You told Patrick Newton that your early years were positive, although you have described to Ms Fawns that your father was regularly verbally abusive to your mother and at one time, threatened to kill your whole family.  Both reports confirm that your father was later diagnosed with post-traumatic stress disorder as a result of his time in Vietnam. 

56When you were about 10 years old, your mother joined a fundamentalist Pentecostal church, which you now describe as a sect.  You were very close to her and you also joined.  Your father did not share your mother's religious beliefs and this created a significant rift between them.  They ultimately separated and divorced when you were in late primary school.  You found this distressing and apparently, in part, blamed yourself because of your decision to become involved in the church with your mother.

57Your involvement in the church and church-related events dominated your teenage and early adult life and has clearly had a significant impact on your development, in particular, your capacity for interpersonal relationships. 
It endorsed strict, conservative religious belief and its approach to church discipline was harsh, including shunning and significant recourse to shame-based behaviour control. 

58Your brother, Jonathon[7], who was present with your other brother in court, wrote a reference for you.  He describes your collective formative years as involving attending church services twice a week, regularly spending holiday periods at church camps and conferences.  He says ‘the church was dominating and encompassing.  It acted as a friendship group, spiritual guide, moral compass and basis for life.  There was no alternative but a fear of eternal damnation and suffering.’  Unsurprisingly, those strict church teachings forbid any intimacy or sexual interaction with others.  Development of your capacity for emotional intimacy with other and your own sexual identity, was thereby somewhat stunted. 

[7] Pseudonym used.

59Your first relationship occurred with another church member when you were 18.  It was secretive, until you married at about age 20.  Prior to your marriage, that intimate relationship was a source of strong feelings of guilt and shame, as it flew in the face of the moral teachings of the church, however, you welcomed the intimacy and gratification which it brought.  You married early, in line with those church teachings.  However, once married, the relationship stalled physically.  Your wife left you for another man after only 18 months.  You and she reunited at one stage, but again separated.  Thereafter your church totally shunned you, given separation and divorce were out of step with church dogma. 

60You brother describes, 'the stress and confusion caused by the inconsistent, degrading and unfair treatment Harrison received by the church during this time' and he says it was a catalyst for a rapid withdrawal from your faith.  He says, 'Separating from the church was like receiving a death sentence from everyone he knew and trusted.  This left Harrison in a sea of uncertainty and a highly emotionally fragile state, as the church was the basis of his peer group, lifestyle and moral framework.'  You thereafter rejected the church, but at that cost. 

61You met Elizabeth in 2011.  She too was a member of the same church, but disengaged.  You moved with her from Newcastle to Melbourne, which led to further isolation from your family and past community.  Your brother says you were in this state of isolation, insecurity, disruption, spiritual uncertainty and recklessness when you moved to Melbourne and married Elizabeth in April 2012.  Soon after, of course, you committed these offence. 

62You and Elizabeth have three sons, born in 2013, 2014 and 2017 and who are now aged between two and six years old. 

63It is apparent, given that history and given the assessments made by Mr Newton, that your capacity for emotional intimacy has been confused by the strict teaching of the church of which you were a part. 

64Your history has also left you susceptible to periods of depression.  Initially this was a result of your distress at your parents' marital problems and separation.  As time progressed, Mr Newton says you ruminated on feelings of guilt at various moral transgressions and your inability to conform to the stringent standards of your religious community. 

65You experienced some reactive depression in the wake of the breakdown of your first marriage and again you experienced a degree of lowered mood, in the context of the challenges that you and your wife, Elizabeth, experienced after the birth of your first child.  However, it was after your relationship with Charlotte was discovered in mid-2016 that you experienced clinically significant depressive symptoms.  These became more intense after you were questioned about these matters by police in 2018. 

66Your general practitioner prescribed an anti-depressant and referred you to counselling.  You have been tried, in fact unsuccessfully, on two different anti-depressants, however you were unable to tolerate those and have relied on counselling to maintain your mental health. 

67Your depression reached its lowest ebb in March 2019 with your marriage finally failing.  You experienced a significant bought of suicidal ideation, which resulted in admission to Maroondah Hospital's psychiatric ward for several days.  You were, at that stage, diagnosed with an adjustment disorder.

68You were originally seen by Patrick Newton for assessment in June 2018. 
You requested counselling to deal with the issues identified and to obtain support.  As a result, you have been in a therapeutic relationship with Mr Peter Hanley, provisional psychologist, since July 2018.  That therapy has been under the auspices and supervision of Mr Newton.  It has, as its key focus, provision of cognitive behavioural therapy directed at addressing sex offence-specific behaviours.  To your credit, you have attended 29 sessions with Mr Hanley to date.

69After your psychiatric admission, you then engaged with Ms Gena Fawns for additional counselling.  That has provided emotional support for your broader life issues.  She says you wanted to address the causes of your offending behaviour, as well as process the separation from your wife and work towards parenting your sons.  You have explored your history of emotional trauma and your family history with her.  She describes you as readily admitting that in your sexual relationship with Charlotte, you have done the wrong thing and you are aware your actions have had a deleterious effect upon her. 

70She echoes the sentiments of others when she says you take fully responsibility for your offending and you have talked at length about the impact of that on Charlotte.  She says you have shown significant remorse and have never tried to apportion blame onto anyone but yourself.  You have shown a high level of empathy for Charlotte and for Elizabeth and you understand the ongoing impact of sexual abuse.  She says you have reflected on previous unhealthy sexual and emotional boundaries and looked into ways you can build healthier relationships.  I take into account those comments. 

71They are also reflective of comments you made during the unguarded pretext call, namely that you acknowledged your responsibility for this offending.  You stated in that call that Charlotte's own issues with her father and family made her extremely vulnerable to that manipulation.  You said you did not have the ability to say 'no'. 

72You acknowledged that as the adult in that situation, you should have said,
'Well actually, no, it's not okay.  The correct thing to do, the principled position would have been to actually respect your right to be a person and make the conscious decision at a point where you're able to make that decision.  
You were miles from that, both in terms of your understanding of things and probably your desire.’

73You acknowledged too in your record of interview that you were looking after Charlotte in a parental way.  You stated therein that you do genuinely care about her and that after the breakdown of your relationship, you were encouraging of her to get help.  You acknowledged her difficult history and the fact that your behaviour continued to ‘derail her’. 

74Those comments do reflect your remorse and empathy.  They show some insight into the impact of your offending.  However, according to Patrick Newton, you have considerable difficulty providing an account for your offending conduct.  Your recollection for specifics of your contact are sketchy.  He outlines your difficulties in the world of interpersonal interactions and emotions, as I have described, and he opines your offending arose from ‘the confusion of healthy filial affection with eroticised interest.’  The context of your pre-existing relationship, according to him, allowed you to overcome your social awkwardness and to pursue a sexual relationship with her.

75What is apparent is that your history has left you with difficulties with intimacy and emotional connections.  He says you increasingly identified with Charlotte's situation, seeing parallels between her family difficulties and your own history.  You thereafter blurred boundaries of what was appropriate, confusing emotional connection with your own sexual desires.

76Although you acknowledged your responsibility for your behaviour to
Mr Newton, he states that your empathy for her remains superficial and intellectualised.  Moreover, reflecting your limited emotional awareness more generally, you remain confused about the boundaries between affection and sexuality.

77Mr Newton confirms your description of your sexual orientation as exclusively attracted to female aged peers and you are in fact in a new relationship.  However, of concern is that fact that Mr Newton notes, you tend to view underage but post-pubescent girls, such as the victim here, as being more sexually and emotionally mature than is accurate.  This perhaps tallies with a conversation attributed to you by the victim to the effect that, in your view, adult/child relationships are judged too harshly.  These dysfunctional attitudes, according to Mr Newton, formed the basis for offence supporting cognitive distortions and combined, underpin your offending. 

78When tested for risk of sexual re-offending, he assessed you as low/moderate risk.  He opines, however, that with continued engagement in offence-specific treatment to address those dynamic risk factors, your risk of re-offending will trend over the medium term towards the low risk range.  He identified that your most significant rehabilitative need is for you to complete specialist sex offender treatment, focussing on the goals of behavioural modification, insight development, enhancement of empathy and relapse prevention training. 
He says the completion of such treatment would be the single most important factor in reducing your risk of re-offending. 

79In terms of your mental health, Mr Newton says you are in a state of moderate emotional distress and describing clear symptoms of depression, in the context of significant social anxiety.  He identified that you are vulnerable to depression because of those problematic early experiences in your family, your repeated involvement with intimate relationships, which you found unsatisfactory and which cemented difficulties in your self-esteem, sense of confidence and feeling of adequacy.  However, your symptoms are not sufficiently severe to meet a criteria for a mood disorder, and the adjustment disorder diagnosed in March 2019 has resolved. 

80He opines, however, that you do remain vulnerable to experiencing further depression.  He observed that due to your ongoing experience of depression and social anxiety, there is a genuine risk that your mental state could deteriorate in the period immediately following sentence, if you are incarcerated. 

81Specifically, he noted the significant side-effects with two different
anti-depressants make treatment of your depression more difficult, resulting, according to him, in relatively intense depression, persisting for longer than would be expected of a prisoner who was able to take anti-depressants.  He says, given your previous suicidal ideation, there would be need for appropriate precautions in a custodial environment.  He concluded it is likely that such issues would result in you having a more difficult experience of prison than is typical.  I take those facts into account.

82I have also read positive testimonials from your friends as to your history and character. 

83Mr Whitton describes you as genuine, honest and someone he could confide in. 

84Angus Williams[8], a semi-retired psychotherapist, has known you in his capacity as president of a renewable energy organisation, for whom you volunteered your skills as analyst and researcher.  He says you did not hesitate to provide your time, regardless of personal commitments, over recent years and that you are a highly regarded member of the group, giving valuable contributions.  He found you loyal, reliable and trustworthy over the 14 months during which you were involved.

[8] Pseudonym used.

85Your brother too says you have been a hard worker for your family, committed to your children and highly involved in their care, even while working full-time.  Any separation from them, I accept, will make any term of imprisonment difficult. 

86In relation to your work history, having completed Year 12 in 2002, you then studied computer science at university, completing your degree and also obtaining a Graduate Diploma in Linguistics.  You have primarily worked in computer science for a period of 15 years.  You completed a Master's Degree, which you completed while working full-time. 

87Most recently you have been employed by Melbourne University as a research data engineer.  In anticipation of the completion of these legal matters and no doubt reflecting your parlous mental state, you handed in your resignation in July this year.

88Since being charged, your brother says you have finally lost your relationship with your wife.  You are living apart from your children.  You have spent periods of time being homeless, including sleeping in your car.

89You have given up your long-term employment, and there has been a financial impact on you.  He notes, however, the biggest impact has been on your mental health, including telling him that you had considered suicide an option.

90You expressed to him also your remorse and understanding of your offending.  You expressed to him a yearning to atone for those mistakes, and a willingness to take responsibility for your actions.  I take those matters into account.

91I also take into account your plea of guilty.  You receive the benefit of that plea.  The prosecution accept it was given at an early stage.  The matter was listed for committal, but it was apparent that the issues were largely around timing.  There was extensive discussion in the leadup to the committal, and importantly, the matter resolved without any cross-examination of the victim.

92In a matter such as this, a plea of guilty is significant.  It saves the victim any further trauma of court proceedings, and it also has a utilitarian benefit of saving the community and the courts the time and expense of protracted proceedings.  In your case, I take it as a further expression of your remorse. 

93I accept your risk as assessed by Mr Newtown as moderate/low, and likely to decreased with appropriate sex offender-specific treatment.  I accept your prospects of rehabilitation are good.  You are a person without prior criminal conviction of any kind, and who has not reoffended in the seven years since this offending.

94You have willingly and in a voluntary way engaged with treatment, in particular directed at understanding your offending.  You are a person with good employment history and with intelligence.

95In all the circumstances, your counsel urged on me a sentence which sees you continue your good therapeutic work in the community under the auspices of a community correction order.  The prosecution submitted that the appropriate sentence is one of imprisonment with a non-parole period.  I have given consideration to those submissions, and to the matters I have now outlined.

96I have also had regard to a number of decisions both of this court and of higher courts with regard to sexual offending against children, including the decision of Dalgleish (a Pseudonym) v The Queen[9].  Comparisons are always limited by their own facts, as are recourse to statistics, however, I have had regard to the sentencing snapshots table provided also.

[9]Dalgliesh (a Pseudonym) v The Queen [2016] VSCA 148

97Some examples of cases which are pertinent here.  In the case of Phillips v The Queen[10], a 2018 decision of our Court of Appeal, the offender in that case pleaded guilty to offences against the 15-year-old who regularly babysat his children.  These were not penetrative offences.

[10]Phillips (a Pseudonym) v The Queen [2018] VSCA 114 at [60] – [62]

98Specific complaint was made in relation to one representative charge where he fell to be sentenced for an occasion which occurred when he was at the victim's home.  He took her to a paddock, where he put his hand down her pants and tried to take her pants off.  She told him not to.  He rubbed his hand up and down her vagina on the inside of her pants, but outside her underwear. 

99In that case, the Court of Appeal said 14 months' imprisonment was not outside the range of appropriate sentences.  In making that assessment, the Court of Appeal made the following comments to which I have had regard.  They said:

'We accept that the age of the victim of sexual offending, the duration of the offending, and the degree of physical contact are relevant in assessing where on the spectrum of seriousness particular offending lies.  However, consistent with the appellant's concession that the offending fell within the mid-range of seriousness, in the present case, these circumstances are insufficient to establish that the sentence of 14 months' imprisonment is outside the range reasonably open. 

The fact that the victim was 14 or 15 years of age at the time of the offending does not diminish the gravity of the appellant's offending.  That is so in light of the fact that she was a friend of the family, and both she and her parents trusted the appellant.  The relationship of trust placed her in a position of vulnerability, because her parents had the confidence to leave her alone with him and he was able to exploit the opportunities that this afforded to sexually abuse her. 

Nor does the absence of skin-to-skin contact mean that the appellant's offending was not serious.  The rubbing of her vagina outside her underwear represented a serious sexual assault.  Notwithstanding that the rubbing was over her underwear, it nevertheless constituted a forceful and intrusive act which violated the most intimate part of her body.

…

As the leave judge noted, the appellant accepted that he stood to be sentenced in a post-Dalgleish environment.

100The court in that case also referred to two other decisions, which are also relevant generally as I assess the seriousness of your offending[11].

In Tones v R[12], the offender was sentenced to 12 months' imprisonment for committing an indecent act with a child under 16.  That offending comprised touching the 13-year-old victim's vagina over her underwear as she lay beside him on his bed.  This court rejected the offender's contention that the sentence was manifestly excessive. 

In DPP v Meharry[13], this court resentenced the offender to 18 months' imprisonment for the offence of indecent act with a child under 16. 
The offending took place when the offender and the 15-year-old victim went swimming.  The offender touched the victim's bottom under her shorts. 
She told him to stop.  He then grabbed her, undid her shorts and rubbed her clitoris on the outside of her bikini bottom.

Tones and Meharry are recent decisions of this court, and reflect current sentencing practices for this type of offending more accurately than the sentencing snapshots upon which the appellant relied.

[11]Phillips (a Pseudonym) v The Queen [2018] VSCA 114 at [66]-[68]

[12]Tones v The Queen [2017] VSCA 118

[13]DPP v Meharry [2017] VSCA 387

101Turning back to your offending.  In summary, here, there was a significant breach of trust.  There was a particular vulnerability of this victim.  The fact is that these are representative charges.  Charge 1 is a penetrative offence.  There was a significant age disparity, and the impact on the victim has been considerable.

102Those matters bring me to the conclusion that the offending here must be met by a term of imprisonment.  I allow, however, for your good prospects of rehabilitation by adjustment of the non-parole period.  I note Charge 2 is part of the same occasion, and therefore will impose more modest cumulation. 

103If you could stand up, please, Mr Peterson.

104In relation to Charge 1, sexual penetration of a child under 16, a representative charge, and of a child who was under your care, supervision and authority, you are convicted and sentenced to three-and-a-half years' imprisonment.  That is the base sentence.

105In relation to Charge 2 of indecent act with a child under 16, you are convicted and sentenced to two-and-a-half years' imprisonment.  One year of that sentence will be cumulative on the base sentence.

106That brings a total of four-and-a-half years' imprisonment, and I set a non-parole period of two years' imprisonment.

107But for your plea of guilty - in other words, if you had not pleaded guilty to this offending - the sentence I would have imposed would have been one of
six-and-a-half years' imprisonment with a non-parole period of four years and three months.

108You are also now to be placed on the sex offender register for a period of
15 years, which is the mandatory term.  Have a seat there, please, and I will have the documents provided to you.

109Mr Schocker, there was an application for forensic sample, and I cannot recall, to be frank, whether Mr Halphen addressed that.

110MR SCHOCKER:  It wasn't opposed, Your Honour.

111HER HONOUR:  Not opposed?  Thank you very much.  So I will make that order in the terms sought.  Ms Mildenhall, I am not sure why I have got two versions of that application. 

112MS MILDENHALL:  I believe there was a custodial and then a non-custodial version of it.

113HER HONOUR:  Yes.  So Mr Peterson, you have had that paperwork provided to you in relation to the sex offender register, and I understand you have signed that as acknowledging you have received that information.

114OFFENDER:  I have.

115HER HONOUR:  Thank you very much.  And I have made that offender for forensic sample, which means that you will be asked to provide a forensic sample, which is usually a mouth scrape.  If you refuse to provide that, reasonable force can be used to take that sample.  I am sure that will not be an issue.  All right.  Have a seat there, please. 

116I hope, in relation to the custodial officers who are present, that some of the information - in particular, Mr Peterson's vulnerability to depression and the difficulty with antidepressants - will be noted by those who take him now into custody, and that past history that I have described in relation to some suicidal ideation, so that he is taken care of when he is taken into custody now. 
Thank you.  You can take Mr Peterson please.

117OFFENDER:  Thank you, Your Honour. 

118HER HONOUR:  Thank you, counsel, for your assistance.  I will leave the Bench temporarily.  Thank you. 

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