Director of Public Prosecutions v Poole (a pseudonym)
[2023] VCC 871
•26 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANE POOLE (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 May 2023 | |
DATE OF SENTENCE: | 26 May 2023 | |
CASE MAY BE CITED AS: | DPP v Poole (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 871 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sexual penetration of a child under the age of 16
Legislation Cited: Sentencing Act 1991
Cases Cited:DPP v Smalley [2023] VCC 456; Worboyes v The Queen [2021] VSCA 169
Sentence: 11 months’ imprisonment and a Community Corrections Order for a period of two and a half years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Moore | Office of Public Prosecutions |
| For the Accused | Ms J. Swiney | Clancy Solicitors |
HER HONOUR:
1Shane Poole,[1] you have pleaded guilty before me to three charges of sexual penetration of a child under the age of 16.
[1] A pseudonym.
2After much anxious consideration I have decided to deal with you by way of a term of imprisonment combined with a Community Corrections Order.
3You will be sentenced to a term of imprisonment of nine months on each of the charges. One month of the sentence on Charge 2 and one month of the sentence on Charge 3 will be served cumulatively to the sentence imposed on Charge 1, giving a total effective sentence of 11 months.
4You will then be released on a Community Corrections Order which, if you consent to it, will last for a period of two and a half years and I will go through the conditions I propose to attach to that order at the end of my sentencing remarks.
5The facts underlying this offending are as follows.
6The complainant was aged 14 at the time of this offending. She was the daughter of a work colleague at a hotel, where you worked as a chef. She met you in May 2021, in the context of her going to her mother's place of work after school and waiting for her to finish a shift. You would sometimes cook food for her.
7The complainant's mother, who I will refer to as Gina Tucker,[2] spent time at your home. She was a single mother of three daughters and you would occasionally babysit for her. You became very close to Ms Tucker and her family, considering yourself to be a father figure in the complainant's life and even on occasion talking to her mother about becoming her legal guardian.
[2] A pseudonym.
8Text messaging between you and Ms Tucker during June to October 2021 revealed expressions by you about your love for her family, and admiration for Ms Tucker as a parent. Ms Tucker in her texting made it clear that she was welcoming you into her family and held you in high regard.
9
In October 2021, you set up a food truck business. The complainant was very interested in the set up and eventually from 26 November 2021 worked for you. She worked weekends and during the school holidays, and during this time the
two of you became closer.
10
In late 2021, the complainant's family contracted COVID and had to isolate.
The complainant asked to stay at your house as she did not have COVID and had nowhere else to stay and you agreed to this and set up a front room as her bedroom.
11Around New Year's Eve 2021, you and the complainant began cuddling on a couch whilst watching TV. This progressed to cuddling together in your bed with an alarm on so that the complainant could return to her bed before your housemate woke up. This practice eventually became a nightly practice between you.
12After the complainant had stayed with you for a week, Ms Tucker agreed to your request that her daughter stay with you at your home on weekends to be closer to her work with you on the food truck.
13On 29 January 2022, the complainant was staying with you and cuddling in your bed and you got on top of her and kissed her saying that you felt guilty, nevertheless the two of you kept kissing.
14The next weekend the complainant again stayed with you. Again, you cuddled in your bed, moved to kissing her and then you kissed her all over her body including her stomach and lower body.
15Texting between you around this time, revealed that that messaging had become more intimate, affectionate and contained sexual inuendo. It was also clear from the messaging that the complainant had developed strong romantic feelings towards you at which stage clearly you should have taken actions to end what was occurring between you.
16As I have said she was 14 years of age at the time of the offending.
17On Saturday, 12 February 2022 at about 1 am, the two of you were watching a movie whilst cuddling in your bed and then you got on top of the complainant and began kissing her. You touched her breasts over her bra which was too tight for you to move your fingers under it. You asked the complainant if you could give her oral sex. She was not sure what this meant but agreed. You took her pants off and rubbed her vagina with your finger which you then inserted into her vagina. These actions underline Charge 1 on the indictment.
18You then licked the complainant's vagina and placed your tongue in her vagina, these actions going on for about three minutes. The complainant then asked you to stop which you did. These actions underly Charge 2 on the indictment.
19
The complainant put her pants on and the two of you continued watching the movie and cuddling in bed. After about five minutes of cuddling and spooning you asked the complainant if she had ever 'given a guy oral sex'. She replying, 'No.'
You asked her if she would like to learn new experiences and she said, 'Sure.'
You then pulled your pants down. The complainant touched your erect penis with her hand and you said she could suck it if she wanted to. The complainant put her mouth over your penis and moved her mouth up and down for a couple of moments, before finding it uncomfortable and stopping. These actions underline Charge 3 on the indictment.
20The next morning the two of you had a brief shower together after you told her nothing sexual would happen. Over the next couple of days, the two of you exchanged intimate and sexually charged texts.
21On 16 February 2021 whilst the complainant was working with you, Ms Tucker discovered the messages between the two of you on her daughter's Apple MacBook. She confronted you by text message. You asked her to keep it quiet, apologised for your actions and promised to stay away from her family, saying you did not know what had come over you.
22On 17 February, you sat down with your housemate and told him you had kissed the complainant, then broke down saying that the complainant's mother had discovered messages about the kiss, that you were 'fucked' and that it had happened on a number of weekends. You repeatedly apologised for your behaviour.
23
Ms Tucker and her daughter attended the Wangaratta police station on 17 February. There the complainant made a statement and gave police her phone and her
Apple MacBook containing the messaging between the two of you. In a record of interview with police that day, you said you regarded yourself as a father figure to the complainant but replied 'no comment' to questions about the offending.
24Ultimately, DNA testing of your bedding provided strong evidence for the proposition that the complainant's DNA was in your bed and had been in your bed.
25You were then bailed.
26The matter proceeded by way of a straight hand-up brief at committal. Then a s198 hearing involving your housemate and Ms Tucker was held. The matter resolved to a plea on 13 December 2022 without the complainant giving evidence at a special hearing, which was vacated. The Crown accepts that yours is an early plea.
27The maximum penalty for sexual penetration of a child under 16, is 15 years' imprisonment. It is also subject to the standard sentencing regime the expected sentence for which in a mid-range case is six years' imprisonment.
28A standard sentence pursuant to s5A(b) of the Sentencing Act is a legislative guidepost that a court must take into account and is based only on objective factors, affecting the relevant seriousness of the particular offence. Other legislative guideposts, however, such as the applicable maximum penalty and current sentencing principles, are also to be taken into account and s5B(3) makes it clear that a standard sentence does not limit the matters that a court might otherwise take into account in determining appropriate sentence, nor does it affect the instinctive synthesis approach.
29You are sentenced as a serious sexual offender on Charge 3 and I note that the prosecution did not seek a sentence which did not take into account the principles of totality. As a result of your offending, you will be placed on the Sex Offenders Register for a period of 15 years.
30In her victim impact statement, the complainant bemoaned the loss of her innocence and the ongoing effect of your offending on her family. She wrote that she still cries often, has become withdrawn and feels constantly hurt over your actions towards her.
31In her victim impact statement, Ms Tucker wrote of her continuing sense of betrayal at your hands, her anger at you having abused the trust she placed in you in essentially overseeing and supervising her daughter in your home and whilst working for you.
32She wrote of the initial horror and guilt that she felt at herself, as all parents in the situation that Ms Tucker has found herself in, do. Fortunately, she has come to realise that this was not something for which she was ultimately responsible and it is very clear of course Mr Poole, that the only person who was responsible was you.
33
Ms Tucker has understandably lost a sense of trust in the community. She described it as losing faith in humanity and that she is incredibly reluctant and concerned in any situation where she must entrust the care of her three daughters to others.
It is quite clear that the emotional distress that she experienced on discovering the sexual relationship that you had formed with her young adolescent daughter is ongoing and affects her in a wide variety of ways.
34I now turn to your personal circumstances.
35
You are 32 years of age and have no prior convictions. You are the middle of three children born to a close loving pro-social and supportive family. You have an older sister and a younger brother. You continue to maintain close relationships with your parents and both your siblings. Your mother works as a radiology nurse, and your father before his retirement worked in patient transport with the
Royal Flying Doctors.
36When you were six your family moved to Wangaratta and then nearby Milawa, and you told consultant psychologist, Patrick Newton whose report was tendered on the plea, that you enjoyed a happy normal family upbringing.
37You completed Year 11 at Wangaratta High School where you told Mr Newton you suffered no problems with bullying, that you were popular, had friends and generally enjoyed your secondary schooling.
38You then undertook an apprenticeship in Commercial Cooking, completing eventually a Certificate III in that area at TAFE in Wangaratta and working throughout your apprenticeship at fine dining restaurants around the Wangaratta area.
39It was clear from what your counsel told me that you have been extremely successful in your chosen area. A number of times you were proclaimed the top young regional apprentice and you often topped your classes. After completing your three years apprenticeship, you then began a 10-year journey if you like, of cooking around the world, cooking at fine dining restaurants around the world.
40At one stage in 2019 you were managing a restaurant overseas, but the pandemic hit, you were unable to obtain a visa and returned to Australia. This was apparently a difficult time for you. The industry in which you worked was one of those most affected by the COVID restrictions and it would appear from the materials in particular the psychological report by Mr Newton that you found this time emotionally difficult.
41
You have a history of age appropriate relationships. In particular from 2011,
you had a long eight to nine year relationship with your then girlfriend but she unexpectedly and very painfully for you I understand, ended that relationship.
You then formed another relationship with a girlfriend overseas, but that came to an end when you were forced to return to Australia, and this, I understand added to your distress.
42In outlining your emotional state as I understand it to be at the time of this offending, I make it extremely clear it in no way provides a basis for you behaving as you did or offending as you did, but I do accept that this offending did occur in the context of some lowered mood by you insofar as your career, and insofar as your relationship scenario was involved.
43I also understand that your, at the time of this offending, the financial hopes you had had for your food trailer were not coming to fruition and this was causing you greater stress.
44It would also appear that at the time of this offending you were turning to greater use of both alcohol and cannabis such that Mr Newton diagnosed you as suffering a mild use disorder in relation to both those substances. Again, I am outlining the context in which you offended not as providing any excuse for your offending but simply acknowledging the conditions in which this offending occurred.
45Importantly, Mr Newton did not find that you suffered from a paedophilic disorder. He referred to the various factors that I have referred to that were existing in your life. It would appear Mr Poole that you like many young men of your age completely failed to appreciate the immaturity of the complainant. This appears to be particularly so in your case and I am now going to return to Mr Newton's report.
46The way Mr Newton describes it as this. He stated,
'"In relation to the complainant". Mr [Poole] rationalised that her physical maturity and her desire to engage in the relationship meant she had the capacity to give consent despite her age. In addition, he downplayed the importance of the age difference between them and seemed to be oblivious of the power which the multiple roles he played in her life gave him. Viewing the relationship as having been consensual and failing to recognise how he has breached her trust, Mr [Poole] continues to struggle to understand the damage he has caused and the impact it has likely had upon her.'
47During the report Mr Newton noted that you
'Could not articulate the rationale for laws governing the age of consent, and instead viewed them as - simply as an arbitrary imposition of government. Thus, with regard to the underaged complainant whilst he understood that his conduct was wrong, he repeatedly pointed to the consideration that it had been consensual.'
48In selecting those particular passages from Mr Newton's report Mr Poole, I am not saying that you are a predatory or paedophilic offender. However, it is my overall view that you had a very poor understanding of the vulnerability of the complainant and a complete unappreciation of the fact that she was a young adolescent and that entering into any sort of romantic relationship, let alone a sexual relationship was entirely beyond her capacity and her maturity at that time in her life.
49The courts always presume harm occurs in cases of this kind. Young adolescents such as the complainant in this case, are entitled to feel that what is often typical at their age, their enthusiasm, their desire to please, their burgeoning feelings about entering into a romantic relationship will not take them into the area of mature sexual relationship that is well beyond them. I accept that your actions have left the complainant herself feeling betrayed and devastated and looking longingly back to the days before she became involved with you.
50Turning again to the victim impact statement of the complainant. She stated,
'He took my innocence from me at the age of 14. I was a child and I can't actually explain how much it hurts. There's no more firsts for me. No first kiss and no first sexual experience with someone who I will love and trust.'
51It was Mr Newton's view that you have suffered, as a Reactive Adjustment Disorder. It is quite clear from the contents of Mr Newton's report and the many references I received from family of friends to which I will shortly refer, that the effects of being charged with this offending have been devastating upon you. It would also seem that you had some appreciation of this, as at one stage you asked the complainant to delete all your texts, obviously aware of the criminal offending, or the criminal consequences of your actions.
52
Otherwise, Mr Newton found you to be a person without a thought disorder dysfunction, generally pro-social, someone who has a successful career, and is well-entrenched in the community otherwise, in particular via your family.
He assessed you using various tools as being a low to moderate risk of reoffending in the same way and stressed that sex offender education is extremely important for you. It was his view that should you undertake that it was his view that you would be – would then pose a low risk of reoffending.
53I certainly accept as I have said that your time since being charged has been particularly difficult for you. In having you assessed for a Community Corrections Order I also received an assessment from the Mental Health Advice and Response Service. The clinician who saw you described you in this way. He said, under the heading “formulation,” he said of you,
‘Mr [Shane Poole] has a documented history of an adjustment disorder with depressed mood, alcohol misuse and depression. He presented today as an emotionally vulnerable sad man still coming to terms with being in prison and adjusting to a strange and intimidating social milieu.'
54I should add, he noted that gaol has been difficult for you. You have undergone a number of threats and intimidation and I accept that it is a difficult scenario for you. He went on to say,
'Mr [Poole] reported that he was emotionally resilient despite reporting a history of unrequited love, unhappy relationship breakdowns and failed business plans due to circumstances beyond his control. [I am assuming there he is referring to COVID]. Mr [Poole] appears to have unresolved grief loss and change issues and he is currently experiencing uncertainty stress and distress being in custody for the first time.'
55Now, I am making some reference to that report and the report of Mr Newton insofar as his diagnoses are concerned, because I am satisfied as a result of that material of two things. First, that the impact of being charged and imprisoned for this offending is having a very strong and powerful impact upon you. Second, I am satisfied, given your previous good history, work history and support from your family that you are unlikely to reoffend in the future. That means that the principles of protection of the community and specific deterrence are not principles which in my view would need feature largely in the sentencing exercise I must undertake.
56Ultimately, it was Mr Newton's view that as a result of being charged as I have said, you had developed an Adjustment Disorder with Depressed Mood. It was his view that, what he described as your naivety to the custodial environment, your pre-existing depression and the opprobrium attached to your offence type would make you a relatively vulnerable prisoner. He believed that you would have a challenging time adjusting to the custodial environment. You would require a relatively high level of support during this period and in combination,
'Such factors would lead to a somewhat onerous experience of incarceration relative to other prisoners who were not facing his particular challenges.'
57I accept that to some extent limbs 5 and 6 of Verdins have application in your case. It was the submission of the prosecution that I should deal with you by way of a term of imprisonment involving a maximum and minimum term. It is not at all surprising that the prosecution should have sought such a disposition.
58
The authorities make it very clear that people who offend in the way you did,
Mr Poole, can only expect to face a term of imprisonment. Principles of just punishment, denunciation and in particular general deterrence, that is sentences designed to deter other adult men who might be minded to engage in sexual activity with underage children are prominent in the sentencing landscape arising from this case.
59In particular, insofar as your case is concerned whilst you were not charged with sexual penetration of a child under your care, supervision and authority, I am cognisant of the fact that the complainant was allowed by her mother to stay at your house and work at your van, so that effectively she was giving you authority, supervision and care of her daughter.
60Now you have not been formally charged in this way. But the circumstances of this case certainly represent a gross breach of trust of the care that was resided in you of this young adolescent girl by the complainant's mother, of the trust she had in you and generally of the trust she placed in you in welcoming you into her family, as the single mother of three children.
61I am acutely aware that in deciding on the appropriate sentence in this case, that it relates to offending which has involved a particularly hurtful and thoughtless breach of trust on your part. I say thoughtless because it is my overall impression for what it is worth, that yours was essentially a self-indulgent offending. You had come back to Australia with your plans in commercial cooking cut short, a second relationship cut short, and I received evidence of the pain and grief you suffered after the abrupt ending of your earlier relationship. You came back to Australia, your industry was essentially shutdown, opened and then shut as a result of the pandemic conditions.
62The second relationship you had formed overseas came to an end. You were living a fairly isolated existence in a town where you did not know very many people, and you allowed a flirtatious relationship to emerge between yourself and the complainant.
63It is quite clear as I have said from the texting that she quickly became besotted with you and no doubt that was an attention that you found comforting and enjoyable, but it was inexcusable and utterly self-indulgent of you, not to recognise how inappropriate this was.
64
You continued to allow that relationship to go on. You engaged in sexual and romantic texting with a 14-year-old girl. And she was not 14 by very much.
You then moved to the sexual actions that underly this offending. And it must be said, one could not be confident that had not the complainant's mother discover the text messaging between you, that this relationship might not have continued and developed into more sexual activity of a much more significant nature.
65I am making a particular mention of these matters, Mr Poole, because although I have decided to deal with you in the way that I have indicated, I want to make it very clear that I have done so in the full knowledge and with the full consideration of the magnitude of your offending and what it entailed, both for the complainant and her mother. This is an incident of which you should be particularly ashamed.
66I received, as I have said, a large number of character references from your family and friends. It is quite clear that you continue to enjoy the support of a close and loving family. I received references from your grandmother, father, mother, brother and sister. I note that you have been named by your brother and sister as guardians to their children. It is clear you are a devoted and much loved uncle to your nieces and nephews. A particularly impressive reference came from your grandmother.
67It is also very clear that your family are not impressed in anyway by your offending, are fully cognisant of its wrongness and it also appeared from the MHARS report that they have made that very clear to you because, it was noted in that report that you felt that your offending had cost you the respect of your family.
68Nevertheless, overall, the references I received were extremely impressive and painted a picture of an otherwise hardworking decent man who was particularly talented in his field and who had particular aspirations in it which were highly likely to have been achieved. In particular, I received impressive oral evidence from your last employer, the publican of a hotel in Wangaratta where you worked for about nine months, before being remanded in custody.
69Your ex-employer is a former high ranking police officer. He served in the Victorian police force for 22 years. He described what a talented chef you are and said he believed your cooking took the culinary standard of his hotel to another level. He also outlined the fact that you and he had a conversation where you fully outlined to him the offending that you faced and said you expressed a great deal of remorse.
70Your ex-employer’s evidence was useful insofar as I am concerned in that it was clear to me that as a former senior police officer the sorts of matters that I have referred to from Mr Newton's report about your lack of appreciation and insight into the power imbalance between yourself and the complainant and your lack of appreciation of her youth and vulnerability were not lost on him.
71He stated essentially that he believed your re-education in this respect began with him while you were working at the hotel and he believed you are now on that path. Ultimately, it was his evidence that he held you in such high regard that he is prepared to take you back into his employment, notwithstanding the difficulties of your placement on the sex offenders register, whenever you should be released from custody.
72In sentencing you, I have taken into account your plea of guilty which as I have said is accepted as an early plea. You were not particularly cooperative with police, but the plea of guilty was made at an early stage. I also take into account the Worboyes[3] consideration that a more than normally significant mitigation should apply to pleas in cases such as this at a time when the court is still catching up on the backlog of cases caused by the pandemic restrictions.
[3] Worboyes v The Queen [2021] VSCA 169
73
I accept your counsel's submission that this offending is out of character for you. I regard you as having excellent prospects of rehabilitation given your strong
pro-social family support and your entire absence of prior convictions. I accept that you have employment to go to and that this is employment offered by someone knowledgeable in the area of criminal offending and of yours in particular and
I regard your future employer as a strong social support. I do not regard as I have said protection of the community or specific deterrence to be of particular significance in sentencing you.
74I also accept that you are remorseful for your offending. It was pretty clear from Mr Newton's report that essentially that remorse lay in the fact that you had been apprehended and charged, that is, any sorrow about the offending laid in the effect that it was having on you. But I also accept particularly in relation to the references I received and the oral evidence given on the plea that this has changed and that you are coming to an appreciation of what your offending actually involved, insofar as its impact on the complainant is concerned.
75In sentencing you to a combined order, that is an order containing a term of imprisonment and release on a Community Corrections Order, I take into account those mitigatory factors. I also note that the offending against the complainant occurred in the course of one occasion, they composing brief episodes of offending and were contained in nature.
76
I have had regard to other sentences in this case. I have had regard particularly from this court in particular, I was referred to the decision of His Honour Judge O'Connell in the case of DPP v Smalley [2023] VCC 456. There,
His Honour was dealing with a martial arts instructor who began a sexual relationship with one of his students.
77The case differs from yours. It involved far more sexual penetration of a more serious kind, essentially it was a full-blown sexual relationship which lasted for some months. In that case also psychological testing revealed in the Accused features of an autistic disorder and a borderline personality disorder, which His Honour took into account.
78Ultimately, in that case the accused was sentenced to a term of three years and seven months with a minimum term of 18 months, there being some emphasis in His Honour's reasoning on the matters personal to the accused in that case.
79Your offending, although serious as I have said, was confined in time, related to one occasion, related to brief episodes of sexual penetration and did not involve penile penetration. Nevertheless, the principles of denunciation, just punishment and general deterrence do demand as I have said that you be dealt with by way of a term of imprisonment.
80
However, for all the reasons I have outlined, it is my view that you should be sentenced in the way I have stated, that you will be sentenced to nine months' imprisonment on each charge, cumulation of one month on Charge 2 and
Charge 3, giving a total effective sentence of 11 months.
81I need to outline to you the conditions which relate to a Community Corrections Order for which you have been found suitable. I can only place you on such an order with your consent Mr Poole. The conditions are these.
82That when the order starts and it will commence on your release from imprisonment, you must report to the Community Corrections within two days of your release, two working days of your release. Whilst you are on the order will last for two and a half years, you must not commit any offence punishable by imprisonment. You must report to and receive visits from the Community Corrections Office.
83Whilst you are on the order you may not leave Victoria without the permission of the Community Corrections Office. You must report any change of address or employment to the Community Corrections Office within 48 hours of the making of this change.
84You must not attend upon the Community Corrections Office under the influence of drugs or alcohol. You must obey all lawful directions of the Community Corrections Office. I am going to impose the following special conditions.
85You must perform 300 hours of unpaid community work. You must attend for treatment and rehabilitation for alcohol use and you must attend for treatment and rehabilitation for mental health difficulties. You must also attend for programs designed to reduce reoffending, in specifically you must undertake a sex offenders' program.
86I will attach a supervision condition to the order. Are you prepared to enter this order, Mr Poole?
87
HER HONOUR: Thank you. All right, we will prepare this. Pursuant to s6AAA
I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of two years and six months and ordered that you serve a minimum term of 14 months. Is there anything else that I need to attend to Mr Moore?
88MR MOORE: I think pre-sentence detention, Your Honour.
89HER HONOUR: Yes.
90MR MOORE: I calculate that at 15 days.
91HER HONOUR: I declare that 15 days of this sentence have been served by way of pre-sentence detention.
92MR MOORE: If Your Honour pleases.
93HER HONOUR: Thank you very much. Yes, thank you. We'll stand down to 11.30, thank you very much and I thank counsel for their assistance in this matter.
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