Director of Public Prosecutions v Ponting
[2021] VCC 1707
•5 November 2021
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01609/CR-19-02245
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JADE PONTING |
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JUDGE: | HIS HONOUR JUDGE CAHILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 August 2021 | |
DATE OF SENTENCE: | 5 November 2021 | |
CASE MAY BE CITED AS: | DPP v Ponting | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1707 | |
REASONS FOR SENTENCE
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Subject: Sexual penetration of child under 16 and common law assault
Catchwords: Guilty plea – high utilitarian value – Covid significance – low level sexual offending – assaults and harassment of girlfriend – controlling and rough behaviour – personality disorder – Verdins principles applicable
Legislation Cited: Sex Offenders Registration Act 2014 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Director of Public Prosecutions v Codey Herrmann [2021] VSCA 160; Brown v The Queen [2020] VSCA 212; R v Biba [2021] VSC 327; Soo v The Queen [2014] VSCA 304; Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74; HAJ v The Queen [2021] VSCA 96
Sentence: Total effective sentence of 3 years and 6 months’ imprisonment – non-parole period of 2 years and 3 months – 768 days pre-sentence detention
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | D. Cordy | Office of the Director of Public Prosecutions |
| For the Accused | C. Pearson J. Manning | Victoria Legal Aid |
HIS HONOUR:
1On 12 August 2021 you pleaded guilty to:
(a) Indictment A:
(i)One charge of sexual penetration of a child under 16 between 1 September 2018 and 31 October 2018 (Charge 1);
(ii)One charge of persistent contravention of a family violence intervention order between 9 and 13 February 2019 (Charge 2);
(iii)One charge of possession of child abuse material (Charge 3) on 13 February 2019; and
(b) Indictment B:
(i)Three charges of common-law assault (Charges 1, 2 and 3);
-Between 15 September and 3 October 2018;
-On 5 February 2019; and
-On 12 February 2019.
2You have also pleaded guilty to the related summary offences of:
(a) Contravene a personal safety intervention order between 31 January and 9 February 2019 (Charge 5);
(b) Assault of Sergeant Hampshire, an emergency worker on duty, on 13 February 2019 (Charge 15);
(c) Fail to comply with a police direction to provide pass code to a phone device on 13 February 2019 (Charge 17); and
(d) Commit an indictable offence, namely persistent contravention of a family violence order, while on bail between 9 and 13 February 2019 (Charge 18).
3The circumstances of your offending are set out in the summary of prosecution opening dated 9 July 2021.[1]
[1] Exhibit A: Amended Summary of Prosecution Opening on Plea dated 9 July 2021.
4In late August 2018, you met Shae Buckley[2]. She was born in November 2002 and was aged 15; you were 23. She was living in a residential unit at Shepparton under the care of Department of Housing and Human Services (‘DHHS’). On 31 August 2018, after DHHS became aware of your contact with her, you were served with a harbouring notice which informed you Shae was 15 years and 9 months old and directed you not to have contact with her.
[2] A pseudonym.
5On 13 September 2018, you were served with a Personal Safety Intervention Order (‘PSIVO’), obtained by police, which prohibited you from having contact with her.
6On 16 October 2018, police spoke to you. You said you had hung out with Shae for about a week before you were given the harbouring notice. You acknowledged the PSIVO excluded you from contact with Shae. You denied you had seen her.
7On 9 February 2019, you were served with a Family Violence Intervention Order (‘FVIO’), which police obtained the day before.
8On 12 February 2019, you had an argument with Shae in a house in Shepparton. She called her workers. When they came to pick her up you punched her (Indictment B, Charge 3 – Assault). They took her home. Police were called but she refused to speak to them.
9Next day, on 13 February 2019, police arrested you at your Tatura home.
10You resisted Sergeant Hampshire’s attempts to handcuff you and, when he, with help from another police officer, tried to get your hands behind your back you spat in his face (Summary Charge 15 – Assault emergency worker – Rolled up charge). He struck you to the head. When you started making noises in the back of your throat, anticipating you would spit again, he sprayed you with capsicum spray and handcuffed you. You were taken outside and given a hose to rinse your face. You swore at Sergeant Hampshire and sprayed the hose on him. When he took you to the ground you spat in his face again (Summary Charge 15 – Assault emergency worker – Rolled up charge). He struck you to your face.
11Police took you to Shepparton police station. You refused to provide the pin code for your phone saying you would “rather just cop the charge”. (Summary Charge 17 – Failed to comply with direction).
12When you were questioned, you exercised your right to remain silent.
13At the end of the interview, you were charged and remanded in custody.
14On your phone, police found three erotic images of Shae which fall into Category One of child abuse material (Indictment A, Charge 3 – Possess child abuse material).
15Initially, Shae refused to speak to police. About two weeks after your arrest, she participated in a Video Audio Recorded Evidence (‘VARE’) interview.
16She told police she met you a few days before the PSIVO was made. She said the two of you didn’t talk for about a month and then you started dating. She said in September or October, you had unprotected penile/vaginal sex with her (Indictment A, Charge 1 – Sexual penetration of a child under 16).
17She also said, sometime between 15 September and 3 October 2018, you had an argument with her and punched her to the side of the face. When she collected her things and started walking down the street, you chased her, grabbed her, and punched her to the face (Indictment B, Charge 1 – Common-law assault).
18When she went back to her unit, her worker saw bruising to her throat and lip. Shae refused to make a report to police, saying it would get back to other people who would hurt her.
19In October 2018, Shae introduced you to her mother as her boyfriend. In late November, her mother saw she had a black eye. Shae told her, “he, [referring to you], doesn’t like it when I talk to other boys” (Uncharged assault).
20On 28 January 2019, Shae messaged her mother, on Facebook, that you had backhanded her to her nose (Uncharged assault).
21On 5 February 2019, Shae was at your home. When she asked you to walk her to the Shepparton police station where she had to meet her residential worker, you refused and kicked her in the stomach (Indictment B, Charge 2 – Common-law assault).
22Later, you sent her a message telling her, “that’s why I hit you where I did ‘cause I know you’re going back to resi and they won’t be able to see it.”
23That night, Shae messaged her mother and said that she had broken up with you because you had kicked her.
24Between 31 January and 9 February 2019, in contravention of the PSIVO, you communicated with Shae 744 times through phone calls, SMS messages, iMessages and MMS messages (Summary Charge 5: Contravene PSIVO – Rolled up charge).
25On 8 February 2019, relying on a report of your relationship with Shae, police obtained a FVIO which prohibited contact between Shae and you.
26After you were served with the FVIO, on 9 February 2019 at 12:15 PM, you persistently contravened the order:
(a) In the evening of 9 February 2019, you were with Shae in a room at a motel, after a complaint, police arrested you.
(b) You were charged with breaches of the intervention orders and remanded in custody.
(c) On 10 February 2019, after you had been bailed with conditions not to contact or communicate with Shae, you called her phone 26 times and sent her 93 text messages;
(d) On 11 February 2019, you called her phone 48 times and send her 3 text messages;
(e) On 12 February 2019, you assaulted her (Indictment B, Charge 3 – Common-law assault) and you communicated with her by phone 42 times, asking her to come back and threatening to self-harm if she didn’t; and
(f) On 13 February 2019, before police arrested you, you communicated with her phone 32 times (Indictment A, Charge 2 – Persistent contravention of FVIO).
27From 9 to 13 February 2019, you were on bail, following your arrest on 9 February for breaching the PSIVO (Summary Charge 18 – Commit indictable offence while on bail – Persistent contravention of FVIO)
28While Shae declined to make a victim impact statement, when police recorded their conversation with her, she had described you as “controlling” and “rough”.
29As I said, you had been remanded in custody on 13 February 2019. On 26 June 2020, you were granted bail.
30On 14 December 2020, you were charged with further offences and remanded in custody.
31On 10 February 2021, your bail in respect of this matter was revoked.
Criminal record
32You have admitted a criminal record which includes appearances at Magistrates’ Court at Shepparton and Dandenong between December 2012 and November 2018.
33More recently, on 8 February 2018, at Shepparton Magistrates’ Court, you were convicted of violence and property offences and sentenced to 9 months imprisonment with an 18-month community correction order.
34On 26 November 2018 at Shepparton Magistrates’ Court, were convicted of persistent contravention of a FVIO, unlawful assault and damaging property, which breached your community correction order. You were ordered to serve an 18-month community corrections order.
Personal circumstances
35You were born in October 1994. You were 23 and 24 years old when you offended. You are now 27.
Defence submissions
36Your counsel, Mr Pearson and Mr Manning, relied on the following documents in support of their submissions:
(a) Outline of Submissions for Plea dated 11 August 2021;[3]
(b) Supplementary Plea Submissions dated 12 August 2021;[4]
(c) Neuropsychological report of Dr Loretta Evans, dated 9 August 2021;[5]
(d) Psychological report of Simon Candlish, dated 12 July 2021;[6]
(e) Letter of your auntie, Catherine Kennedy, dated 28 July 2021;[7] and
(f) Neuropsychological report of Dr Sheryl Monteath, dated 18 November 2014.[8]
[3] Exhibit 1: Outline of Submissions for Plea dated 11 August 2021.
[4] Exhibit 2: Further Outline of Submissions for Plea dated 12 August 2021.
[5] Exhibit 3: Neuropsychological Report by Dr Loretta Evans dated 9 August 2021.
[6] Exhibit 4: Psychological Court Report by Mr Simon Candlish (Consultant Psychologist) dated 12 July 2021.
[7] Exhibit 5: Reference letter of Catherine Kennedy.
[8] Exhibit 6: Neuropsychological Report by Dr Sheryl Monteath (Clinical Neuropsychologist) dated 18 November 2014.
37You grew up at Tatura. You have a younger sister and an older maternal half-sister. Your father was a violent alcoholic and your mother suffered bipolar affective disorder. Your parents separated when you were three-years old. You longed for your father’s attention, but he had little to do with you.
38Your mother supported you throughout these proceedings. You will be able to live with her when you are released from custody.
39You also have the support of your aunt, who is an early childhood teacher.[9]
[9] Exhibit 5: Reference letter of Catherine Kennedy.
40She wrote, during your childhood you “were exposed to drug and alcohol abuse, illegal activity and domestic violence”. You were raised by her sister, your mum, under extreme financial difficulty. Your education was “very limited”.
41Your aunt is aware you were physically abused by at least one of your mother’s partners. According to her, when you were 13 years old, you started using marijuana, before progressing to “ice”. As she described you, “Jade began self-harming by cutting himself, his life spiralled out of control, and he was a danger to himself and others when using “ice”.
42After you had been released from Malmsbury Youth Justice Centre, you lived with your aunt and her husband for the duration of your parole. You kept your parole appointments, engaged with Youth Justice workers, saw a psychiatrist, and attended a local community college. You were enjoying “routine and stability in (your) life until (you) formed a relationship with a (girl) who was a drug user.” You fell back into old habits – cutting yourself, abusing drugs, offending, and being incarcerated. She said, “Each time he has been released from prison Jade has tried to stay clean and has managed for varying periods of time before regressing.”
43You disclosed to Mr Candlish that when you were six years old, you were sexually abused by an older boy and again when you were 15, by an older man.[10] You confirmed this report to Dr Evans.[11] You told her you struggled to discuss the abuse because it made you feel “degraded”.
[10] Exhibit 3: Neuropsychological Report by Dr Loretta Evans dated 9 August 2021.
[11] Exhibit 2: Further Outline of Submissions for Plea dated 12 August 2021.
44In her report, Dr Evans helpfully summarises your medical records.
45Between 2002 and 2005 you were involved with Child and Adolescent Mental Health Service (‘CAMHS’) to address an attachment disorder and behavioural problems.
46You had further contact with them in 2010 and 2011 when you were diagnosed with major depressive disorder, conduct disorder and substance use with increased suicidality.
47A number of Youth Justice reports, prepared in 2009, 2010, 2011 and 2012, reported six Child Protective Services notifications concerning your emotional and physical safety between the ages of 9 and 15 years.
48On 25 April 2011, when you were found hallucinating on Datura plant extract, police took you to the emergency department at Shepparton Hospital. You were admitted to the psychiatric unit at Box Hill Hospital as an involuntary patient. You were prescribed Olanzapine to manage agitation after you had damaged Hospital property. The discharge summary, dated 6 June 2011, recorded previous head injuries, when skateboarding, and having been thrown against a metal object by your mother’s partner. You were discharged into the care of your aunt as your mother was reluctant for you to return home.
49On 7 December 2012, Dr Adam Deacon, a psychiatrist at Malmsbury Youth Justice Centre, assessed you when you were suffering psychotic auditory and visual hallucinations. Dr Deacon confirmed the diagnosis of schizoaffective disorder, and you were treated with Seroquel, an anti-depressive medication.
50On 2 August 2014, police took you to the emergency department at Dandenong Hospital, after you had again experienced hallucinations and self-harmed. You were diagnosed with anti-social personality disorder and borderline personality traits. After a four-day admission, you were discharged to your aunt’s care.
51On 1 December 2014, police took you to the emergency department at Shepparton Hospital when you were drug affected and had self-harmed. You were kept overnight.
52In October 2015, your GP at Headspace, Shepparton, referred you to a psychiatrist for treatment for anxiety. On 13 October 2015, Dr Vijay Raj confirmed your schizoaffective disorder diagnosis and recommended that you take antipsychotic medication, but you were “lost to follow-up”.
53On 10 May 2017, when you reported to your GP that you were anxious, sleeping badly and in low mood, you were referred again to a psychiatrist for opinion. However, the outcome of this referral is not known.
54On 31 July 2018, you presented to emergency department at Shepparton Hospital, after you had overdosed on prescription medication and cut your neck and wrists. You reported you had tried to kill yourself because of relationship issues. A laceration to your left wrist required stitches and you were admitted to the mental health unit for four weeks. You were diagnosed with adjustment disorder with possible antisocial personality disorder.
Dr Evans assessment
55Dr Evans saw you for neuropsychological assessment on 3 August 2021.
56You confirmed to her your history of physical and sexual abuse throughout your childhood. You described your upbringing as “very dysfunctional”. You told her you left school during Year 8 after “wagging” most of the time.
57You have had very little paid employment. You described your typical day, in the community, as “playing X-Box (or being with) a girlfriend, driving around or using drugs.”
58You gave her a history of polysubstance abuse which commenced at the age of 15, including cannabis, chroming and ice as well as prescription medication.
59You told Dr Evans you cannot “break away” from ice. You said, “I’ll have a fight with my girlfriend and turn to ice. It’s easier to deal with life when I’m on ice and I feel more confident. But I know if I don’t stop, I’ll end up dead or end up hurting someone else.”
60You said this is your “7th time in jail including juvie”.
61You said, in jail, you don’t have any relationship problems and you don’t have to be worried about being judged by anyone. You said your mental health is better in prison.
62According to Dr Evans, you deflected questions about your offending, tended to attribute blame to others and showed limited capacity for genuine remorse.
63In 2014, Dr Sheryl Monteath had examined you neuropsychologically.[12] Your intelligence was assessed to be within the low average to average range with a “profile of severe memory impairment”. She diagnosed you with a moderate substance related Acquired Brain Injury (‘ABI’). In her opinion you were capable of making some recovery with sustained drug abstinence.
[12] Exhibit 4: Psychological Court Report by Mr Simon Candlish (Consultant Psychologist) dated 12 July 2021.
64Your test results in 2021 improved slightly, likely due to enforced drug abstinence in prison.
65Your general intellectual functioning was assessed as low to average. You were slow to process information and showed some memory problems. In Dr Evans’ opinion you demonstrated a mild ABI “but (you) are not within significantly impaired/intellectually disabled ranges, yet”.
66Dr Evans considers you have a Severe Borderline Personality Disorder which stems from your “dysfunctional” childhood. She considers, while you are “cognitively intact”, you have “the potential to react defensively, as well as aggressively, and combined with poor anger management, (your) ability to think in a calm and reasoned manner is compromised to a mild – moderate degree and possibly exacerbated even further by acute substance intoxication.”
67In her opinion, “it is possible that psychological distress has the potential to override decision-making considering your history, you have suicide attempts and self-harm in response to relationship issues”.
68In her opinion, you would benefit from counselling, intensive treatment, and participation in offender-specific treatment programs. She considers your tendency to quickly resume illicit drug use post prison release, particularly in response to relationship issues, is a barrier to your treatment and rehabilitation prospects.
Simon Candlish[13]
[13] Exhibit 4: Psychological Court Report by Mr Simon Candlish (Consultant Psychologist) dated 12 July 2021.
69A psychologist, Mr Candlish, assessed you on 17 and 22 June 2021.
70You told him were in love with your victim and believed your relationship deteriorated because of drug use and your abusive behaviour.[14]
[14] Exhibit 4: Psychological Court Report by Mr Simon Candlish (Consultant Psychologist) dated 12 July 2021, at [16].
71In his opinion, your violence towards her appeared reactive and related to jealousy, insecurity, and paranoia as well as a sense of entitlement to see her, in spite of the intervention orders, and to assault her.[15]
[15] Exhibit 4: Psychological Court Report by Mr Simon Candlish (Consultant Psychologist) dated 12 July 2021, at [11].
72You told him you had offended violently against a former partner in 2018 and you face charges for violent sexual offending against a subsequent partner in 2020.
73In Mr Candlish’s opinion, against your background childhood abuse and neglect, you suffer a Severe Personality Disorder. You struggle to consider the consequences and harm of your actions and you are vulnerable to self-destructive behaviour. Your substance abuse has been both destabilising and disinhibiting.
74In his opinion, while you report, unhealthily, you feel better in prison for its certainty and stability, incarceration might contribute to greater suicidality and self-harm. And in jail, mixing with antisocial prisoners, you risk reinforcement of your existing distorted attitudes.
75Mr Candlish assessed you as a high risk for violent reoffending and a moderate to low risk of sexual offending.
76To assist your rehabilitation, he recommends:
(a) medical consideration of the anti-depressant medication to help you reduce impulsive and angry behaviour;
(b) counselling to help you address develop coping strategies and improved self-control; and
(c) drug counselling to help prevent you relapsing into substance abuse.
Defence submissions
77Your counsel submitted, the offence of sexual penetration is at a lower level because your victim was nearly 16 years old, you met through friends rather than through some position of trust or supervision, the offending was not aggressive, and it occurred in the early part of your relationship with her.
78It was accepted that you were subject to a community corrections order and also a harbouring notice, which aggravated your offence.
79It was also submitted that your possession of child abuse material was a low-end example of the offence because the three images, all of your then girlfriend, fall into the lowest category.
80It was accepted that your breaches of the intervention orders are additional criminality requiring further punishment.
81It was submitted, while any assault of a girlfriend is unacceptable, your victim’s physical injuries were minor.
82The following factors were relied on in mitigation of penalty:
(a) Your guilty plea, as your acceptance of responsibility for your offending and for its high utilitarian value;
(b) your background of disadvantage;
(c) living with uncertainty as to your outcome during the delay in sentencing;
(d) additional hardship of prison due to pandemic-related restrictions and isolation; and
(e) your personality disorder to reduce your moral culpability and moderate general and specific deterrence.
83It was also submitted, considering you are still a relatively young man, with your mother’s and aunt’s support, your rehabilitation prospects cannot be disregarded.
84It was acknowledged that the seriousness of your offending warrants a custodial sentence.
85It was submitted that because of your “bleak” personal circumstances and, particularly, the risk of your institutionalisation, raise complex sentencing issues I should order a pre-sentence report before sentencing you.
86I decided to order such a report.
Presentence report
87Dr Prashant Pandurangi assessed you on 2 and 6 September 2021.[16]
[16] Exhibit C: Forensicare Report of Dr Pandurangi dated 21 September 2021.
88You told him you had girlfriends of similar age and denied any interest in young girls or underage children. To explain the age difference between Shae and you, you said there was a gap of 10 years between your parents. You said Shae made you happy and you were in love with her. You said you should have waited until Shae was 16 to have sex with her.
89You acknowledged your assaults on her were wrong. You said they occurred when you were drug affected which led to arguments between the both of you. You also acknowledged you breached the intervention orders. You said a number of the phone communications were ‘two way’ and Shae sent you the photos which constitute the child abuse material.
90After reviewing the reports of Dr Evans, Dr Monteath and Mr Candlish, and assessing you himself, Dr Pandurangi diagnosed you with a severe personality disorder shaped by your ‘dramatic early life experiences’.
91You suffer restlessness, concentration difficulties, hyperactivity, irritability, and sleep disturbances. Given your history of drug use, you meet the criteria for polysubstance abuse disorder. In his opinion, if you continue to use illicit drugs, you risk developing an enduring mental illness.
92To the question whether there is a link between your personality disorder and your offending, Dr Pandurangi wrote:
“The offending is reflective of the various aspects of his underlying severe personality disorder including forming intense and sexual (sic) inappropriate relationships, impulsivity, lack of consequential thinking and impact on the victim, along with the disinhibiting effects of drugs would have significantly contributed to his decision making which led to the offending. In my opinion, his personality disorder and use of illicit drugs would be considered a necessary factor but not sufficient to explain the offending. There is no indication the offending was driving (sic) by an underlying deviant sexual arousal towards underage children and there is no indication to suggest he currently suffers from paedophilic disorder… “[17]
[17] Exhibit C: Forensicare Report of Dr Pandurangi dated 21 September 2021, [50] [emphasis added].
93Dr Pandurangi continued:
“The violent offences and breaches of intervention orders are similarly reflective of emotional dysregulation, inability to resolve conflicts, poor self-awareness, lack of coping skills and inability to manage his own anger, which are all again aspects of his personality disorder.’[18]
[18] Ibid, [52].
94He found no evidence your mental health has deteriorated in custody.
95He assessed your risk of similar sexual offending as moderate and your risk of violent offending as higher. In his opinion, you will need supports and treatment to reduce the risks.
96
He recommended long term psychological treatment and drug and alcohol counselling.
Prosecution submissions
97In written[19] and oral submissions, Mr Cordy, who appeared for the prosecution, submitted your offending is a very serious example of family violence considering:
· it occurred over a period of 5 months and, at times, was persistent in the extreme;
· your victim was young, aged 15 years; and
· she was vulnerable, under the care of DHHS, and suffered from anxiety and Borderline Personality Disorder.
[19] Exhibit A: Amended Summary of Prosecution Opening on Plea dated 9 July 2021; Exhibit B: Prosecution Sentencing Submissions dated 12 August 2021.
98While acknowledging, when you had sex with her, Shae was nearly 16 years old and there was no coercion, you were eight to nine years older than her. He submitted your sexual penetration of her was particularly serious as you did not wear a condom and ejaculated, increasing the risk of a sexually transmitted infection or pregnancy.
99He also submitted your assaults were serious because they appear to have been aimed at controlling or subduing Shae when she was upset with you.
100He conceded the possession of child abuse material is a less serious example of that offence.
101He submitted that specific deterrence is an important sentencing factor because you have a history of similar offending, namely:
(a) On 26 November 2018, you were convicted of family violence offences after you punched your then partner in the mouth and choked her, while she was holding your child. You also threatened her with a knife;
(b) On 8 February 2018, you were convicted of violent offences after you had stepped onto the road in front of a car. When the driver got out, you punched him to the face;
(c) On 23 June 2015, you were convicted of family violence offences after you had kicked your mother;
(d) On 12 December 2014, you were convicted of contravening a family violence intervention order after unlawfully going to your then partner’s house; and
(e) On 12 December 2012, you were convicted of family violence offences when you made threats to a friend of your mother and threw a brick at him.
102He submitted it is an aggravating feature that you committed these crimes when you were subject to two community corrections orders made on 8 February 2018 and 26 November 2018.
103On 14 November 2019, you were sentenced for contravening the personal safety order and harbouring a child under an order, which occurred on 14 December 2018, during the period of this offending.
104He submitted, because of your history of similar offending, and failure to comply with previous community corrections orders, your prospects of rehabilitation should be considered guarded.
105He accepted, in mitigation, you are still a relatively young man, you pleaded guilty at an early stage and the pandemic has been an additional burden to prisoners.
106He accepted that because of the link between your personality disorder and your offending, the Verdins principles are engaged, but because your abuse of drugs was also a contributing factor, the degree of moderation of your sentence should be reduced.
107He acknowledged you are at risk of being institutionalised and submitted a longer than usual parole period might motivate you to break the cycle of your offending.
Consideration
108In relation to the indictable offences for which you are to be sentenced:
(a) Sexual penetration of a child under 16 (s 49B Crimes Act 1958) carries a maximum penalty of 15 years imprisonment;
(b) Persistent contravention of a family violence intervention order carries a maximum penalty of 5 years imprisonment or 600 penalty units;
(c) Possession of child abuse material carries a maximum penalty of 10 years imprisonment; and
(d) Common assault carries a maximum penalty of 5 years imprisonment.
109In relation to the related summary offences:
(a) contravening a personal safety intervention order carries a maximum penalty of 2 years imprisonment for 240 penalty units;
(b) Assault emergency worker carries a maximum penalty of 6 months imprisonment or 60 penalty units;
(c) Failing to comply with a direction to assist carries a maximum penalty of 2 years imprisonment; and
(d) Committing an indictable offence on bail carries a maximum penalty of 3 months imprisonment.
110For the offence of sexual penetration of a child under 16, the law prescribes a standard sentence of 6 years’ imprisonment, as a guide.
111Shae was a vulnerable 15-year-old girl, who was under DHHS care and suffered from anxiety and a borderline personality disorder.
112Although she was nearly 16, you knew she was not yet 16 and you were 8 years older. As the prosecutor said, you must have and should have known better. As you said, you should have waited.
113While it was not accompanied by any threat or force, her willingness to engage in sexual activity does not pardon your behaviour. You having unprotected sex with her and ejaculating, increasing the risk of an STI or pregnancy, is an aggravating feature.
114Nevertheless, as a single episode of offending, with your girlfriend, which would not have been a crime had you waited, your offending is a low-end example of the offence type.
115At times you assaulted Shae to control and subdue her. Such controlling behaviour is not to be tolerated. Committing the offences while you were drug-affected is no excuse.
116The breaches of the intervention orders, involving huge numbers of phone communications, were an extreme harassment of her.
117While she declined to make a victim impact statement, when police spoke to Shae, she described you as controlling and rough. She said that she had told her mother she ended the relationship with you after you had kicked her. No doubt she has been harmed by your crimes.
118Your possession of erotic photos of Shae, which fall into the least serious category of child abuse material, is in the lowest range of child abuse material offences.
119Your history of family violence offending against two previous partners, that being your mother and a friend of hers, and the fact that you were subject to two community corrections orders when you committed these crimes is relevant to the need for specific deterrence in your sentence, and also to your prospects of rehabilitation.
120The seriousness of your offending requires a sentence of imprisonment to achieve the purposes of sentencing in your case.
121However, there are mitigating factors which significantly moderate the sentences I will impose.
(a) Firstly, your guilty plea has spared your victim any involvement in the proceedings. It has high utilitarian value which is greater during the public health pandemic because it alleviates the current strain on the justice system.[20] You are entitled to a significant sentencing benefit for your guilty plea.
(b) Secondly, because your severe personality disorder, which was shaped by your traumatic childhood experiences, is a contributing factor in your offending, your moral culpability is reduced, and general and specific deterrence are to be moderated.[21]
(c) Thirdly, you are also entitled to a sentencing benefit for the additional hardship of prison during the pandemic, due to the absence of visitors, the reduction of programs and the increase in lockdowns.[22]
(d) Fourthly, you are coping well in prison; perhaps too well. There is a risk of your institutionalisation. I have moderated your total effective sentence and your non-parole period to give you an opportunity, and an optimism, for your early release under parole supervision into the community.
(e) Fourthly, you are coping well in prison - perhaps too well. There is a risk of your institutionalisation. I have moderated your total effective sentence and your non-parole period to give you an opportunity, and an optimism, for your early release under parole supervision into the community.
(f) Fifthly, you have endured two and a half years of anxiety, largely in difficult pandemic-related prison conditions, while you awaited sentencing for serious crimes.
[20] Worboyes v The Queen [2021] VSCA 169.
[21]Director of Public Prosecutions v Codey Herrmann [2021] VSCA 160; Brown v The Queen [2020] VSCA 212.
[22] R vBiba [2021] VSC 327, [38].
122Additionally, you are still a relatively young man, and your rehabilitation cannot be discounted.
123Because you are to be sentenced for a large number of offences, applying the totality principle, I will make orders for accumulation and concurrency of individual sentences to ensure your total effective sentence properly reflects your overall criminality.
124Mr Ponting, by the sentence I impose I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind.
125Considering the circumstances of your offending, your personal circumstances and antecedents and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:
(a) In respect of Indictment A:
·On Charge 1, sexual penetration of a child under 16, you are convicted and sentenced to three years’ imprisonment. This is your base sentence.
·On Charge 2, persistent contravention of a family violence intervention order, you are convicted and sentenced to nine months’ imprisonment.
·On Charge 3, possess child abuse material, you are convicted and sentenced to seven days’ imprisonment.
(b) In respect of Indictment B:
·On Charge 1, common law assault, you are convicted and sentenced to three months’ imprisonment.
·On Charge 2, common law assault, you are convicted and sentenced to three months’ imprisonment.
·On Charge 3, common law assault, you are convicted and sentenced to three months’ imprisonment.
(c) In respect of the related summary offences:
·On Charge 5, contravene a personal safety intervention order, you are convicted and sentenced to two months’ imprisonment.
·On Charge 15, assaulting an emergency worker on duty, you are convicted and sentenced to one months’ imprisonment.
·On Charge 17, failing to comply with a police direction to provide the passcode to a phone device, you are convicted and sentenced to 14 days’ imprisonment.
·On Charge 18, committing an indictable offence while on bail, you are convicted and sentenced to one months’ imprisonment.
126I direct that three months of your sentence on Charge 2 on Indictment A, one month of your sentence on Charge 1 on Indictment B, one month of your sentence on Charge 2 on Indictment B, and one month of your sentence on Charge 3 on Indictment B, be served cumulatively upon your base sentence and upon each other.
127Your total effective sentence is three years and six months’ imprisonment and I direct you serve a minimum period of two years and three months’ before being eligible for parole.
128I declare you have already served 768 days of your sentence by pre-sentence detention.
129While there is some artificiality to the process, I declare but for your plea of guilty I would have sentenced you to five years’ imprisonment and directed you to serve a minimum period of three years and six months’ before being eligible for parole.
130With your consent, I make an order for the disposal of the mobile phone seized from you.
Sex Offenders Registration
131Mr Ponting, the offence of sexual penetration of a child under 16 is a Class 1 offence under the Sex Offenders Registration Act (‘the Act’). Possession of a child abuse material is a Class 2 offence. Under the Act, you are now a registerable offender, and you must comply with the reporting conditions of Part 3 of the Act for the rest of your life. You must report your personal details to Victoria Police within seven days and you have an ongoing obligation to report your personal details to Victoria Police each year thereafter and to report any change of your personal details during that time.
132It is an offence punishable by a term of imprisonment to fail without reasonable excuse to comply with your reporting conditions. The details of those reporting conditions will be provided in a document to you in due course.
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