Director of Public Prosecutions v Powell

[2018] VCC 2046

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01767

DIRECTOR OF PUBLIC PROSECUTIONS

v

SCOTT POWELL

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	6 December 2018
CASE MAY BE CITED AS:	DPP v Powell
MEDIUM NEUTRAL CITATION:	[2018] VCC 2046

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Birkin
For the Accused	Mr R. De Vietri

HIS HONOUR: 

1Scott Powell, you have pleaded guilty to one charge of using a carriage service to transmit indecent communication a person who was aged under 16 between 15 April 2017 and 22 April 2017, and to one charge of wilfully committing an indecent act with or in the presence of a child under the age of 16. 

2The first charge is contrary to the Commonwealth Criminal Code and the second is a State offence under the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.

3The circumstances of the offending are contained in a prosecution opening.  That document was tendered and I will recite a brief summary for purposes of this sentence.  I will refer to the victim as A for anonymity and to protect her identity. 

4You were 32 years of age at the time of this offending.  The victim in this matter was 15 years of age.  You and the victim first met one another on 15 April via a mobile application known as Whisper.  You started communicating and you stated that you thought the victim was 17 or 18 years of age having viewed photographs of her.  However you admitted that shortly into your conversations, the victim informed you she was in fact 15 years of age.  You continued communicating with her after having become aware of this over the next week via different digital communication platforms including mobile application Snapchat and Kik as well as occasionally sending text messages and speaking over the phone.

5On Tuesday 18 April 2017, a very short time after, the victim sent you a message requesting that you source drugs and cigarettes for her and you stated, "Quiet.  I can't feed a 15 kid drugs.  I'll get shot."  The victim responded with, "I'll fuck you," to which you replied, "LOL, you do that without drugs." 

6Later that same day, you sent the victim a message stating, "What's doing?  So horny," to which she replied, "I would be but I just squirted everywhere."  You replied, "Where my pics?"  The victim replied, "Haha."  You wrote, "I'm sitting here stroking it."  The victim replied, "Nice."  You then asked, "Can I see your tits?" to which the victim replied, "No."

7The next day, you sent the victim a message asking, "How come you're still up?" to which she replied, "Can't sleep."  You replied, "Sex help sleep."  There are number of other exchanges between you and the victim that were sexual in nature.

8On 21 April, at 5.29 pm, the victim sent you a message asking, "How far away are you from Lilydale?"  You replied, "Right now I'm in Warragul with my kids.  When I'm at home, 30 minutes.  Why?  What's up?"  The victim stated that she left home and needed somewhere to stay.  You told her she could stay at your house if she needed to but you would not be there until about 8.30 or 9:00pm.  You told her to get herself to Frankston because you were with your children until about 8.30.  You stated that you would text her when you left and get her from around where she was if she could get closer.  You then sent her your address and stated that you needed to spend time with your children and would send her a message soon. 

9She then sent you a message asking you if you still wanted her to go to Frankston train station and stated she had another mate, that it was all good and not to worry about it.  She then sent another saying, "Actually, just text me when you get home.  I don't know if I can or want to stay there."  You asked for her phone number and she replied with it, stating she did not have credit on her phone. 

10You sent her a message stating, "I'll call you.  Will you be safe?"  She replied, "Yes.  Do you want me to catch the train to Frankston?"  You replied, "It's up to you.  Are you safe at your mate's?  If you feel unsafe, you're welcome at mine.  You tell me what you want to do."  She then asked you if it was okay to stay with you to which you replied that it was fine and you asked her why she ran away.  She stated she would explain to you later and would meet you at the train station. 

11You collected her from the train station at about 8.40pm and drove her to your home.  You asked the victim if she wanted a drink, to which she agreed.  The two of you commenced drinking alcohol and the victim stated she was pretty drunk.  She could hardly stand by the end of the drinking session.  Both of you sat on the couch, you gave her a cuddle and a kiss on the forehead.  She described you as being really flirty, "trying to kiss me, then by the time I got pretty drunk." 

12You stated you were affected by antibiotic medication and alcohol and you blacked out at some stage but you recall the victim trying to kiss you, rubbing you on the leg.  You said you "initially pushed her hand away".  You recall getting an erection which she saw as you exposed yourself to her.  You were wearing shorts that you do not normally underwear with and both you and her later awoke in your bedroom.

13The next morning being Saturday 22 April you asked the victim if she wanted to come to work with you.  She declined.  You left the victim at your home and went to work.  That morning, you tried to call her but she did not answer.  You again sent a message saying, "Only calling to make sure you're okay."  You did not receive any replies and that evening you sent the victim a further message saying, "Door's open if you need a place to sleep." 

14The following day, you again did not receive any reply.  You sent another text, "We just not talking now?"  Again, A did not reply.  And on the following day, the Monday, you sent a further text stating, "You find somewhere safe." 

15On the 24th, the victim met with workers from the Department of Health and Human Services in relation to her removal from the family home.  During the course of the meeting, she told them she had stayed with you and disclosed that she had been drinking with you and that there had been "sexual contact" between you by referring to the kiss.  She was assessed at the Monash Medical Centre and participated in a VARE recording on 31 January 2018. 

16On 17 May 2017, police attended your home in possession of a search warrant.  You were present.  You were arrested.  The search was conducted in your presence and you participated in a record of interview later that day where you made certain admissions to knowing the age of the victim, communicating with her via different methods over the course of the week, knowing what you were doing was wrong, offering the victim a place to stay, collecting her from the train station, supplying her with alcohol and engaging in indecent acts with her.  You were charged and released pending summons and you did not spend any time in custody.

17The court received a victim impact statement from A and from her stepfather.  She wrote that this offending has made her somewhat fearful and hypervigilant in public spaces and in private places, affecting her relationship with anxiety and depression, diminishing her social ability and functioning.  Her trust has been damaged.  Her temper has eroded into anger, frustration and panic.  Her stepfather has noticed the descent of A into even lower self-esteem, suicidal ideation and attempts, requiring enhanced supervision, increased recklessness and risk-taking by her, a loss of trust, fear of being alone, volatility in the family environment, lack of sleep and diligence in study and diminishing care of herself by way of alcohol and smoking.

18All of these impacts are routinely seen by the court as natural consequences of your kind of offending.  I take these impacts on the victim into account.

19It is noteworthy at the outset of the considerations of the circumstances of the offending that the prosecution has essentially relied on your account of those circumstances given by you in your interview when questioned by police.  The answers and admissions given by you are the basis of the circumstances alleged, although some matters contained in the opening by the prosecution were disavowed during the plea, specifically matters at paragraphs 24 and 25 in which there were matters which may have read as eluding to either attempting to penetrative activities or attempts otherwise to a sexual contact, that has been described as being encompassed by your kiss on her forehead and embrace and touching by her of you with the exposure of your erect penis.

20Your admissions in relation to the circumstances accompanying the plea made and the remorse evidenced by the plea in acceptance of responsibility for your actions will be taken into account.  It was conceded that the communications were inappropriate between an adult and a child under 16 years of age.  This was inappropriate sexualised communication which is culpable and carries significant moral responsibility on your part for the nature of the exchange which it invites, for the subjects it encompasses and for continuing with such talk when it must have been more than plain to you that it was communicating with her in an inappropriate way.  This was in the context of significant age disparity and experience. 

21The acts which followed may be at the lower end of the spectrum of sexual contact but occur in an environment of exploitation, opportunistic sexual gratification and egregious breach of trust. 

22It was said that at some point, you felt concerned for her welfare.  That may have been the case at some point but this quickly became a perversion of concern into an indecent dealing with a vulnerable victim.  It is no answer to point to her behaviour or to her engagement into the exchange with an adult.  The moral blame is entirely yours.  Alcohol is not a mitigating factor nor the assistance you may have provided to her all too readily over that relevant period. 

23General deterrence and denunciation must play important roles in the sentence of the court.  You have prior criminal history from 2007.  When aged 22, a court fined you for criminal damage.  There was then a period of some nine years in which you were offence free but in 2016 you were again fined for recklessly causing injury and assault.  These are not offences similar in nature to the current offences but mean that you have been in contact with the criminal justice system before.  And in my view, specific deterrence is still relevant.

24However, apart from what may be escalating seriousness of offending, an assessment of your prospects of rehabilitation given your personal circumstances must take into account such prior history.  I take into account your personal circumstances and background. 

25You are the youngest of five children.  Your childhood was unremarkable except perhaps for the relevant frequent absence of your parents due to their work requirements.  They were not attentive or emotionally generous as you would have liked.  You left home aged 18.  Both of your parents passed away earlier this year and this loss caused you significant grief naturally enough. 

26You left school at the end of Year 10.  You were not academically inclined and your schooling was affected by what you described as the roughness of the schooling option in the Frankston area and your own behaviour.  You attended two secondary schools and after leaving you obtained work as a roof tiler for a year.  You then went on to other labouring work and then as a lifeguard for four years.  Thereafter, you commenced scaffolding work in which you have maintained employment for some 12 years.

27You commenced drinking alcohol from age 13 or 14 years and since the age of 19, you have consumed it almost every evening with binges on weekends.  After the loss of your parents, this increased and you sought refuge and relaxation in its use particularly after your separation for your ex-wife some three years ago.

28At age 19, you met and were with your ex-wife till aged 29, having married in 2010.  You have two children from that relationship.  You had affairs on several occasions and your wife discovered your infidelity.  After your separation, you had a casual sexual relationship with a woman who fell pregnant.  You co-parent a one-year-old boy as the relationship is not one in which you are currently together. 

29After the separation, you attended a men's behaviour change program three years ago.  This was precipitated by an assault by you upon a neighbour who tried to intervene when you heard an altercation and called the police.  You also referred yourself to Relationships Australia for a parents after violence program.

30After separation, you also drove purposely at a tree at high speed and attempted self-harm.  A report was received by the court from consultant psychologist Simon Candlish dated 23 October 2010.  And this morning, the court received a letter from Mr Ilan Lohr, a clinical psychologist, dated
4 December 2018.  That was in relation to five occasion since the plea was made on your behalf on which you have apparently attended to psychological treatment with the Let's Get Better clinic.

31A very comprehensive report of Mr Candlish outlined your education, relationship, childhood and psychosexual history.  He conducted a number of psychometric tests and expressed his diagnostic impressions and opinions.  He made a risk assessment on an actuarial static and dynamic basis which he outlined in some detail.  I will not repeat his findings or opinions extensively.  They can be summarised in this way although I have carefully noted and taken into account each of the matters raised in his report.

32You are emotionally labile, experiencing extreme mood swings and poorly managed anger.  You are uncertain about major life issues with little sense of direction or purpose.  You have a history of intense and volatile relationships, often marked by self-destructive behaviour.  You are socially isolated with limited social skills with particular difficulty in interpreting the normal nuances of interpersonal behaviour which may provide some explanation for your offending.

33With alcohol use having a negative impact on your life choices, compounding your mistrust of other people's motives with high levels anxiety and irritability, you meet the criteria for major depressive order in remission.  You present as with a moderate to low risk category for sexual reoffending, but in order to increase the management of that risk, there should be interventions designed to manage future risks including alcohol use.

34You have some protective factors present in your life such as stable work, some family support and contact with your children.  You appear aware of the seriousness and wrongfulness of your actions and appear in the opinion of Mr Candlish to not have issues in relation to sexually disinhibited behaviour, particularly with younger persons.

35He then helpfully provides a list of useful psychopharmacological, psychological and substance abuse interventions which the context of your future management should take into account.  I have read and taken into account the material contained in the defence folder tendered as Exhibit 1, particularly the letters from Relationships Australia of May 2016, the letter from Dr Okoronkwo, Dr Islam and letters of reference from Mr and Mrs and Ms Gouli and Mr Jenner, and a letter from yourself dated November 2018. 

36It was considered by the prosecution that in your case, a community corrections order would be able to encompass all the requirements of the applicable sentencing principles.  Having considered the submissions made on your behalf and that generous concession, I have formed the same view.

37I take into account your plea of guilty.  I accept that it was made an earlier time at committal with the consequence that no witnesses were called and more importantly, no trial proceeded on the indictment.  There is significant utilitarian benefit in this course.  A discount will be applied to your sentence.

38I asked Corrections to carry out a suitability assessment which they undertook and they found you suitable.  I intend to make such an order to which you have consented in writing.  You will be required to be of good behaviour for 12 months and not to reoffend in any way in that time.  You will be required to perform 200 hours of community work.  You will attend treatment and rehabilitation for alcohol, mental health and offence-related programs.  You will, by my order, be able to credit 50 hours of such rehabilitative treatment towards the hours of unpaid work.  You will attend supervision appointments as directed.  You will report to the Community Corrections at Frankston by 4:00 pm on 7 December 2018. 

39I must warn you, Mr Powell, that if you breach any of the conditions of this order either by non-compliance or by reoffending, you will be brought back before me on a contravention of the order for punishment and I may need to resentence you on this offending by which time my options may well be more limited.  That is, you will likely go to gaol.

40Given that you have answered a plea to two Schedule 2 Class 2 offences, the provision of the Sex Offenders Registration Act comes into operation and you will be registered as a sexual offender for a mandatory period of 15 years.  This registration carries with it significant requirements in the reporting of information about a large number of things.  It does not form part of my sentence but my sentence triggers those obligations.  You should familiarise yourself with the material that you will receive to ensure you are not in breach of those requirements.  If you do breach them, you will be brought back before a court for punishment. 

41I have signed the forfeiture order in relation to the phone, I order that you undergo our forensic procedure so that a biological sample will be taken from you, usually a mouth scraping which is not a painful procedure.  That is to place your biological sample on a DNA database.  If at the time that a request for such a sample is made you do not consent, the authorised officer of police can use reasonable force to obtain a blood sample from you.

42The orders of the court will be that on Charges 1 and 2, you are convicted and sentenced to a community corrections order for 12 months in the terms that I have set out in relation to each.  Because the two charges arise out of different jurisdictions, there will need to be two concurrent community corrections orders which run side by side.

43But for the plea, I would have sentenced you to a total effective sentence of 12 months' imprisonment.  There is no pre-sentence detention to declare, as I understand?

44MS BIRKIN:  No, Your Honour.  

45HIS HONOUR:  Thank you.  I was handed forms to sign in relation to the ancillary orders.  Yes.  I have signed the forfeiture order and the 464ZF order. 

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