Director of Public Prosecutions v Piper (a pseudonym)

[2022] VCC 1622

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

 Revised
(Not) Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICK PIPER (a pseudonym)[1]

To ensure that there is no possibility of identification of the victim, this judgement has been anonymised by the adoption of pseudonyms.

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF SENTENCE INDICATION:	15 September 2022
DATE OF PLEA AND SENTENCE:	21 September 2022
CASE MAY BE CITED AS:	DPP v Piper (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1622

REASONS FOR SENTENCE
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Subject:SENTENCE – CRIMINAL LAW

Catchwords:  Guilty plea following a sentence indication – supply methylamphetamine to a child – sexual penetration of a child under the age of 16 – possession of a drug of dependence – standard sentencing scheme – criminal history for dishonesty offences

Legislation Cited:  Crimes Act 1958; Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991

Cases Cited:Worboyes v The Queen [2021] VCC 169

Sentence: 4 years and 10 months with a minimum non-parole period of 2 years and 11 months. S 6AAA: 7 years and 3 months with a non-parole period of 4 years and 9 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	B Sonnet (Sentence Indication) A Dearman (Plea and Sentence)	Solicitor for the Office of Public Prosecutions
For the Accused	M Brown	Emma Turnbull Lawyers Pty Ltd

HIS HONOUR:

1Nick Piper[2], you have pleaded guilty on Indictment M12589882 to one charge of supplying a drug of dependence to a child, namely methylamphetamine and cannabis; one rolled-up charge of sexual penetration of a child under the age of 16, and one charge of possession of a drug of dependence, namely cannabis.  The maximum penalty for the supply charge is 15 years; for the sexual penetration it is 15 years, and five penalty units for the possession of cannabis.

[2]        A pseudonym.

2You were born in January 1996 and you were therefore aged 25 at the time of the offending.  The circumstances of your offending were outlined in the Amended Prosecution Plea Opening, tendered as Exhibit A today.

Circumstances of the offending

3

The victim in this matter was born in September 2008; she was therefore

13 years old at the time of the offending.  She was, and is, under the care of the Department of Families, Fairness and Housing, meaning she was under the care of protection authorities.  She was living in a residential unit at that time. 

4

You did not know the victim before the offences.  You added her on Facebook after chatting via Facebook Messenger.  You arranged to meet her at a hotel in

North Melbourne on 18 November 2021 on the basis you would provide her with drugs and alcohol in exchange for sexual acts.  You told the victim you were

18 years old, while the victim told you she was 15 years old.

5On Thursday 18 November at approximately 9.05am you entered the YHA Hotel at 78 Howard Street in North Melbourne.  You rented a room for $67.20.  You went to the room before leaving again at 10.57am.  At 11.55am you sent the victim a message asking if she could come earlier, to which she responded that she could not.

6At 5.55pm you walked to the Southern Cross railway station where you had arranged to meet the victim.  Shortly after 6.11pm you met her at one of the platforms.  From there you walked together to the YHA Hotel in North Melbourne.

7At around 6.48pm you and the victim entered the YHA Hotel and went up to the room.  Inside the room, and throughout the night, you supplied her with cannabis, methylamphetamine, and vodka.

8The prosecution case, which you accepted, is that the supply led to the sexual acts between you and the victim because you gave her the drugs and alcohol so that she would have sex with you.

9

At 7.56pm the victim sent a text message to her Anglicare support worker,

Lana Westaway, saying, 'I'm fucking cooked'.  She had previously told

Ms Westaway that she had been speaking with a Nick, and that he had asked her to come to Melbourne after an appointment she had in Bendigo that day.  

10

The victim told Ms Westaway that she had informed Nick that she was

15 years old, and that Nick had told her he was 18 years old.

11In the room at the hotel you performed several non-penetrative sexual acts with the victim, which the prosecution rely on as context to the charged acts.  You and the victim also engaged in unprotected sexual intercourse on multiple occasions during the night.  This is also relied as context to the charged acts.

12The victim, in her VARE, said that on one of these occasions you ejaculated inside her vagina.  This is part of Charge 2, of sexual penetration with a child under the age of 16, which is a rolled-up charge.  You also penetrated her mouth with your penis on one occasion, which is part of the rolled-up charge, and you penetrated her vagina with your fingers on one occasion, also part of the rolled-up charge. 

13At 11.59pm the victim was captured on CCTV leaving the room and going to the toilet, wearing only a jumper.  At 8.58am the next morning the victim sent a text message to Ms Westaway that read, 'Living the dream high on meth and drink'. 

14At 10.08am you and the victim left the hotel.  Before leaving you gave the victim three zip lock bags of cannabis amounting to 31 grams.  This is part of Charge 1, supply a drug of dependence to a child.  The other part of that charge is the drugs the victim was supplied with in the room the night before.

15At 11.00am you and victim arrived back at the Southern Cross railway station.  You walked the victim to her platform and she boarded a Bendigo train.  Very soon after, at 11.02am, you sent her a text message which said: 

'Well I know you said you were all good and everything was sweet but I really hope it was and that I get to see you again or something.  Think we could actually have fun together if you really want to keep meeting up tbh but it’s up to you really.  Hope to hear and see from you soon'.

16At 1.02pm the victim arrived at her residential unit in Bendigo.  Workers from Anglicare were present at the address when she arrived.  She presented as substance affected and had 'love bites' all over her neck.  She spoke with one of those workers and told her that she had had unprotected sex with a male who was much older than she was.  

17After receiving that information the Anglicare worker got in touch with
Ms Sharni Credlin from Child Protection.  Ms Credlin contacted Ms Westaway, who attended soon after at the residential unit to check on the victim's welfare.  Ms Credlin had called you that day and had a conversation with you about her concerns that you were having contact with young children.  You sent Ms Credlin a text denying that you had had any contact with the victim.

18Later on you sent a text message to the victim relating to the cannabis that you had given her and how she might avoid getting caught with it.  Ms Westaway later contacted police about this matter and the victim ultimately made a VARE and underwent a medical examination.

19You were arrested on 15 December last year and you were interviewed by police.  You denied any involvement in the offending in the record of interview, other than in relation to cannabis that had been located in your room which is the subject of the possession of cannabis charge. 

Victim impact

20I have read and had regard to the victim impact statement in this matter which was tendered as Exhibit B on the plea.  The victim describes finding daily tasks such as showering really difficult since the offending.  She says her sleep has been affected because she is 'thinking about stuff'.

21When describing how her life has changed, she says she feels more distrust of males.  She is fearful of male doctors, teachers, police, and carers, that they may do something to her.  She describes feeling more anxious in hotels, and is worried about running into you in public.

22Having to talk about what happened to doctors and police made her feel uncomfortable and upset.  She is hopeful she will learn to trust males again, and to have a future where she feels safe.

23The law presumes serious long-term harm to a child, both physical and psychological, from premature sexual activity.  Clearly the presumption is not rebutted in this case.  Based on the victim impact statement, it is apparent the victim is already suffering psychologically because of what you did.

Gravity

24Offending such as this is inherently serious.  The maximum penalty and the standard sentence for the sexual penetration offence reflect this.  The provision of illegal drugs to a child is also a serious offence, which has a maximum penalty of 15 years.  

25In sentencing you I am required to have regard to the protection of children from sexual exploitation.  The purpose of the legal prohibition on sexual activity with children is to protect vulnerable children from premature sexual activity and to deter such conduct.

26It was submitted, and I accept, there are several aggravating features that are not present in this case: the age gap between you and the victim was not as substantial as is often present; the relationship did not involve a breach of trust or the exercise control; and there is no evidence of resistance to the sexual activity. Whilst consent could never be mitigating in these circumstances, offending against active resistance would be a serious aggravating factor.  All that said, the absence of these aggravating features is not mitigating and does not reduce in importance the serious aspects of the offending.

27The victim was only 13 years old, although she told you she was 15 years old.  I sentence you on the basis that you thought she was aged 15.  This is relevant to your moral culpability, which would be higher if you knew she was only 13 years old.  The reality though is that you were nearly double her age.

28The victim was vulnerable to becoming involved in a situation such as this, being under the care of protection authorities at that time.  You pretended to be 18 years old, presumably to increase the chances that the victim would agree to have sex with you.

29In this case the sexual offending and the offences of supplying the drugs are linked.  You gave her the drugs to facilitate her participation in the sexual offending, as an incentive for her to engage in sexual activity with you.  This is how the Crown put the case, and the defence accepted this.  It is, of course, serious criminal conduct to supply a child with the drugs that you did on this occasion.  

30In assessing the gravity of this offence, I take into account the fact that the charge makes it a crime to supply drugs to someone under the age of 18.  As such, the victim in this case was 13 years old and you thought she was 15 years old, so even assessing her age from the perspective of your belief she could not be said to be at the higher end of the age range.

31I must also consider the amount and the nature of the drugs that you supplied.  In this case the drugs supplied were methylamphetamine and cannabis.  Methylamphetamine in particular is a highly addictive substance and can cause significant detrimental effects to a person who becomes addicted to it.

32Having said all that, the conduct covered by this offence is so linked to Charge 2, the sexual penetration offence, that it really operates as an aggravating feature of that charge.  I discussed this aspect of the charge today with both counsel, who agreed that I could treat Charge 1 in this way and that if I do, in sentencing you, I must seek to avoid double punishment and impose a concurrent sentence for that charge.  Nonetheless, the period of imprisonment I impose must reflect the serious nature of that charge. 

33The sexual penetration charge here is a rolled-up charge encompassing three different types of penetration occurring in the context of other sexual activity over several hours or overnight in the one incident.  I must take into account the criminality involved in all the instances of penetration covered by the charge.  Other things being equal, a rolled-up charge is more serious than a charge for a single offence. 

34You did not wear a condom during the charged act of penile/vaginal penetration, thus exposing the complainant to the risk of disease and pregnancy.  This is an aggravating feature of this case. 

35Having regard to the serious aspects of your offending, which plainly involved some planning and which involved protracted sexual activity, your moral culpability is substantial.  

Personal circumstances

36You were born in Australia and you grew up in Laverton.  You have an older brother, a younger sister and one older half-brother on your father’s side.  Your father is 54 years old and he works for Australia Post.  Your mother is 51 years old and she is not working.  Your mother and father live together at the family home in Gordon, which I understand is between Bacchus Marsh and Ballarat.  That is where you grew up.

37To Mr McKinnon, the psychologist who provided a report which was tendered on the plea, you described your upbringing as 'all right'.  You reported that your parents used cannabis and methylamphetamine, and your dad has a criminal history.

38You fell out with your father in high school, apparently over money and drugs.  One of your brothers is a heavy drug user. Your sister lives at home.  Your paternal grandmother and older brother, as I understand the material, are the only family you have any significant contact with at the moment.  You describe your older brother as your main support.  He is married with three children.

39You attended three primary schools before moving to Laverton Primary School in Grade 3.  You played sport and you were academically reasonably successful, but you were otherwise not interested in school.  You left Laverton Secondary College after completing Year 10 at the age of 16.  You then began working for KFC.

40At age 22 you went to a flexible learning school in Prahran, where you completed VCAL and a Certificate III in hospitality.  You also returned to work at KFC for a period of two months.  You did some work in an administration role.  I am told that you have also engaged in voluntary work such as organising fun runs for a City Council.

41You began using cannabis and consuming alcohol when you were 17.  By the age of 18 you were using methylamphetamine.  You have been a regular methylamphetamine user since, and more recently spent three months in the Bridge Program, a residential drug treatment program in Bendigo.  Ms Brown told me today that was in 2019.

42You then relapsed in 2021 and lost your community housing and ended up back in Gordon living with your parents.  You reported you previously had a small circle of close friends, but these friendships ended due to your drug use and criminal activity.

43You have had two significant relationships, one which lasted six months and another which lasted for nine months.  The last relationship ended in 2018 when you became homeless.  In those years you lived in community housing.

44Since being in custody you have been working in the numberplates workshop and you have completed an Atlas educational program for eight weeks, and a forklift operator's course as well. 

45Mr McKinnon, in his report, indicates you have overcome a substance abuse disorder in relation to methylamphetamine since being remanded in custody.  He says you otherwise have no psychological disorders.

Guilty plea

46You have pleaded guilty to the charges in this case following a sentence indication hearing where I gave a sentence indication of a total effective sentence of five years' imprisonment.  Your plea has significant utilitarian value.  You have saved the court the resources involved in running a trial. 

47

The prosecution written submissions on the sentence indication hearing acknowledged that the court 'must expressly recognise the substantial value in avoiding a trial where a vulnerable child would be exposed to extensive

cross-examination, and that such trials are very difficult to prosecute'.

48Additionally, you have pleaded guilty at a time when the court faces a backlog of trials resulting from the suspension of jury trials during the pandemic.  The increased utilitarian value of a guilty plea in the current environment was recognised in the decision of Worboyes[3] and I have applied those principles.  You are entitled to a palpable amelioration of the sentences to be imposed.  I accept your plea indicates some remorse and a willingness to facilitate the course of justice.  

[3]Worboyes v The Queen [2021] VSCA 169

Prospects of rehabilitation

49You were 25 years old at the time of the offending, so you are still a relatively young man.  You have a criminal history which relates largely to dishonesty offences, mostly from the Children's Court.  You have previously received a short term of imprisonment and you have previously received a youth supervision order, a community correction order as well.  You do not have any criminal history for sexual offences.

50Still, your prior convictions and your failure to rehabilitate when given an opportunity are a cause for caution in assessing your prospects of rehabilitation.

51In his report Mr McKinnon said: 

'In a general sense Mr [Piper] appears to struggle with chronic interpersonal difficulties, problems with establishing and maintaining healthy adult romantic relationships, general lifestyle instability, social marginalisation, estrangement from family members, and a failure to develop a vocational pathway, enduring social network or any particular recreational pursuit.  In my opinion Mr [Piper]’s criminal history suggests he has accrued some antisocial and criminal traits.

However, Mr [Piper]'s prior offending history mostly entailed driving and dishonesty offences, with no sexual or violent offences having been recorded.  In this context, the information available to me does not support the view that Mr [Piper] labours with entrenched violent tendencies or a psychosexual pathology.  In my opinion the offences against the victim in 2021 appear to represent an extreme aberration in Mr [Piper]’s personal history'.

52He also said:  

'In my opinion, at the time of the offences Mr [Piper] was suffering with substance abuse disorder which made a significant contribution to the offending by degrading his ability to apply good reason and sound judgement, making him more impulsive, fuelling erotic impulses and lowering his ability to empathise with others and maintain normal adult and community standards'.

53Your counsel, Ms Brown, submitted greater emphasis should be placed on your rehabilitation than for a more mature offender.

54As regards your risk of further sexual offending, I accept the opinion of Mr McKinnon that the offending here was an aberration, and in my opinion you have good prospects of not committing sexual offences again.  The key to your rehabilitation is establishing some stability in your life and dealing with your substance abuse problems.

55It is evident from the comments of Mr McKinnon that you were somewhat adrift in the world in the time period leading up to this offending.  You are still a relatively young man and you are of reasonable intelligence so there is reason to have optimism that you can stop offending and lead a productive life, but it will not be easy for you, given the issues described in Mr McKinnon’s report.

56I will allow for a significant period of parole to reflect the need for rehabilitation in your case.

57I take into account the fact that the time you have spent on remand waiting for this matter to be finalised has been served under the restricted conditions that have prevailed in prisons over the period of the pandemic. Visits were, for a time, suspended and programs restricted.

58I take into account an increased burden of the period of time you have spent in prison.  There may be some impact on the further time to be served.

Standard sentence

59Sexual penetration of a child attracts a standard sentence of six years' imprisonment.  The standard sentence is the sentence for an offence taking into account only the objective factors affecting the relative seriousness of the offence, and is in the middle of the range of seriousness.

60The standard sentence is not a mandatory sentence; nor the primary sentencing consideration, or the starting point from which to add or subtract time.  It is just one of the many matters I must consider in the instinctive synthesis of sentencing.  The sentence I have imposed is lower than the standard sentence for sexual penetration of a child under the age of 16.

61For a standard sentence offence I am constrained from fixing a non-parole period lower than 60 per cent of the head sentence unless it is in the interests of justice to do so.  As discussed at some length with both counsel, I am not of the view that there are any factors in this case that would justify a non-parole period below 60 per cent, but given your relative youth and the matters raised in Mr McKinnon's report, including the deleterious impact of imprisonment on your prospects of rehabilitation, I intend to impose a non-parole period of 60 per cent or as close as I can get to 60 per cent. 

62In considering concurrent sentencing practices for a standard sentence offence, I must have regard only to sentences imposed since the introduction of the standard sentencing scheme.  I was provided with a table of cases by the prosecution which were discussed at some length during the sentence indication and today's plea hearing.

63Of course there are differences in each case and comparative cases are not precedents.  Like the standard sentence, current sentencing practices are just one of the many matters I must have regard to in deciding the appropriate sentence.

64For offending such as this, where the protection of vulnerable children is the clear aim of the legislation, general deterrence must assume considerable importance, as must denunciation of this serious behaviour.  Specific deterrence is relevant too, subject to the assessment of your rehabilitation as per the report of Mr McKinnon.  I take into account also just punishment and community protection.

65It is also necessary to have regard to your rehabilitation and ultimate reintegration into the community at the end of your sentence.  I will reflect this in the non-parole period which, as I have indicated, will be very close to 60 per cent of the head sentence.  

Sentence

66Mr Piper, you are sentenced as follows: 

(a)   On Charge 1, supply a drug of dependence to a child, you are convicted and sentenced to two years' imprisonment.

(b)   Charge 2, a rolled-up charge of sexual penetration of a child under the age of 16, four years and ten months' imprisonment.

(c)   On Charge 3, possession of cannabis, you are convicted and sentenced to a fine of $100. 

67I fix a minimum non-parole period of 2 years and 11 months. 

68Pursuant to s 18 I declare 280 days of pre-sentence detention to be deducted from the sentence that I have imposed. 

69Pursuant to s 6AAA of the Sentencing Act, but for your plea of guilty the sentence I would have imposed, if convicted of these offences after a trial, would have been seven years and three months, with a non-parole period of four years and nine months.  I make the disposal order sought by the prosecution.

70In this case the sexual offence you have committed is a Class 1 offence under the Sex Offenders Registration Act. The mandatory registration period is 15 years.

71In relation to the Sex Offenders Registration order you will be provided with documentation that I will ask you to sign, that document indicating that you have received it and that will be returned.  Those are the orders that I make.

72Are any other orders required in this matter?

73MR DEARMAN:  No, Your Honour.

74MS BROWN:  As Your Honour pleases.

75HIS HONOUR:  Thanks to both counsel.

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