Director of Public Prosecutions v Power (a pseudonym)
[2023] VCC 13
•19 January 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAX POWER (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE KARAPANAGIOTIDIS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 January 2023 |
DATE OF SENTENCE: | 19 January 2023 |
CASE MAY BE CITED AS: | DPP v Power (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2023] VCC 13 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentencing.
Catchwords: Sexual assault of a child under the age of 16 – Plea of guilty – Worboyes – Youth – Bugmy – Verdins – Reasonable prospects of rehabilitation.
Legislation Cited: ss 5, s5B(2)(b), 6AAA, 18 Sentencing Act 1991 (Vic); s 61 Sex Offenders Registration Act 2004 (Vic).
Cases Cited:Azzopardi v The Queen [2001] HCA 25; Bolton v The Queen [2019] VSCA 21; Bugmy v The Queen [2013] HCA 37; R v Verdins [2007] VSCA102; Worboyes v The Queen [2021] VSCA 169.
Sentence: 18 month Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Strugnell | Office of Public Prosecutions |
For the Accused | Ms L. Dubroja | KPW Lawyers |
HER HONOUR:
1Mr Power[1], you have entered a plea of guilty to two charges of sexual assault of a child under the age of 16.
[1] A pseudonym.
2The full circumstances of your offending are set out in the agreed prosecution opening of 5 December 2022 marked as Exhibit A on the plea.
Circumstances of the offending
3In summary, at the time of your offending, you were 18 years of age and living with friends in Wangaratta. The victim is Hunter Kilson[2], he was 13 years old and was living with his mother, older sister Dora Kilson[3] and brother.
[2] A pseudonym.
[3] A pseudonym.
4In the evening of 19 November 2021, you went to his home to visit Ms Kilson who was your friend at the time and someone you had known for about four to five years through school. You bought a six pack of Carlton Draught, full strength beer and a 750 millilitre of Vodka mixer with you to the address. You sat in the kitchen with others, including Ms Kilson and Hunter for approximately two hours talking and drinking. You gave a small amount of beer and some Vodka mixer to Hunter for him try.
5You consumed approximately five beers and half of the Vodka mixer being three to four standard drinks. Ms Kilson wanted to go to bed and asked you and Hunter if you wanted to watch a movie. She went to set up her television in her room and overheard you ask Hunter if you could sleep in his bed and watch a movie with him. At around 12.30am, you went into Hunter’s bedroom to share his bed and watch a movie.
6Hunter fell asleep on the bed and woke up to you putting your hands down his pants. You were touching and rubbing his penis and stomach area and that is the basis of Charge 1. You removed your hand from his pants upon Ms Kilson opening the bedroom door. She had come into the room as she had heard noise outside and asked if you had heard it too. Hunter then got up and went to the kitchen and you followed him. He then went back to bed by himself and went to sleep.
7At around 2.30am, he awoke to you pulling your pants down and touching his penis with your hand. You were trying to put his penis into your mouth. He said 'What are you doing?' and pushed your head backwards. You did not say anything, but then asked him 'Can I finish it after?’ That is the basis of Charge 2. Hunter got up and went to leave the room. You told him not to tell anyone 'Or he's going to get people to bash me'. You then followed him into the lounge room. You also said 'I had a great night with youse'.
8As an excuse to leave the house, Hunter told you that his nephew wanted to see him. Hunter left the house and went across to the home of his friend. He immediately complained to his friend's mother, who took him to his other sister's home who lived nearby. His sister and partner attended his house, woke everyone up, confronted you and called Triple 0. The police arrived at approximately 3.00am. When they spoke to you, you did not deny the allegations, but claim to have no memory of it.
9On 22 November 2021, Hunter participated in a VARE, a video recording at the Wangaratta police station. On 26 November 2021, you were arrested, interviewed and then released pending summons.
Victim impact statements
10The Court received several victim impact statements that powerfully speak of the impact of your crimes. Hunter describes how your offending has affected all aspects of his life. He cannot sleep, he struggles to concentrate and he no longer attends school. He experiences often a range of emotions including anger, fear and anxiety. This sometimes makes him feel 'out of control' and he has experienced a breakdown of friendships and increased conflict in his family. He also states:
I feel unsafe at home and away from home. Like I'm constantly worried about my safety. I'm isolated from peers, don't know how to talk to people anymore.
11Your offending has also had a profound impact on those who love and care for Hunter. His mother, Melissa Bones[4], speaks of her hurt and anguish in seeing her child suffer and of the accompanying feelings of guilt and powerlessness. She mourns the loss of her sweet innocent boy, 'who used to be so full of life and love'. She states:
Your actions in that short time will have a lifetime effect on my son and our family.
[4] A pseudonym.
12In her victim impact statement, Hunter’s sister and once your friend, Ms Kilson
refers to her feelings of guilt, hurt and betrayal and how she no longer recognises her brother. She states:I've lost my best friend. The little boy I watch grow up by my side, so happy, active, well-mannered and now he barely stays home or I hardly see him or hear from him.
13Hunter’s sister, Ashlea Bones[5], read out her victim impact statement and poignantly spoke of how your conduct has undermined her sense of trust in humanity and stolen her brother's innocence and his right to feel safe in his own home.
[5] A pseudonym.
14While the impact of your offending cannot swamp the sentencing process, I accept that the impact has been significant, and I take it into account in sentencing you.
Nature and gravity of the offending
15Sexual offending against children, Mr Power, is serious and abhorrent. The seriousness of such offending is reflected in the maximum penalties and also the standard sentencing regime that applies to both charges. Children are particularly vulnerable and as a community we expect, and must be vigilant to ensure, that they are protected from sexual harm and exploitation. As the prosecutor, Ms Strugnell submits, it is well established that the sexual abuse of children and young people is severe and long lasting. That is abundantly clear in this case. Also Mr Power, I have no doubt that it is something that you personally appreciate, given your own traumatic experiences.
16There is no dispute that your offending is inherently serious. In an assessment of its objective seriousness, I take into account a number of factors including that it occurred within Hunter’s home, where he was entitled to feel safe. There are two incidents and clearly you did not desist after the first. You also threatened Hunter if he disclosed what had happened. I also take into account your relative ages, that is Hunter was 13 and you were 18 at the time. Also without detracting from the seriousness of such offending, this is not a case involving ongoing predatory behaviour or grooming or a breach of trust or authority.
17You apparently do not have a recollection of your offending or a clear memory of the night. I accept that your recollection may well have been affected due to the amount of alcohol and prescription medication you had used. Of course, Mr Power, this is no excuse for what you did. I do accept that your moral culpability for your offending should be moderated by reason of your childhood history of disadvantage and trauma. I also regard your youth to be a very important factor in the assessment of your offending. I will return to these matters shortly.
18While your case does not invoke the Verdins[6] principles, I do accept by way of broad context that from a young age, you have had longstanding mental health problems and vulnerabilities. Some three months prior to this offending, you were admitted into a psychiatric hospital, following an attempted suicide. The day after the offending, you were again admitted into hospital after attempting suicide by overdosing on your medication.
[6]R v Verdins [2007] VSCA 102.
Plea of guilty
19I accept, Mr Power, that your plea of guilty, while not entered at the earliest opportunity, is still a relatively early one and entitles you to a significant discount in sentence. Your plea has an important utilitarian value.[7] While I accept that the expectation of giving evidence would likely have caused anxiety to Hunter, importantly, by virtue of your plea, he has not been required to give evidence in court and relive or compound his trauma.
[7]Worboyes v The Queen [2021] VSCA 169.
20Your plea indicates that you are willing to facilitate the course of justice. I also accept that it reflects remorse. Even though you do not remember what you did, you told neuropsychologist Martin Jackson, that:
Because you do not remember it does not mean that it did not happen and you question why a young boy would raise these issues, if they did not actually occur.
21Similarly during your earlier police interview, you stated:
I'm not denying that I did whatever I did. I'm not denying it at all. A kid wouldn't make up something like that out of the blue for no reason.
22In your recent assessment with Corrections, the following is also noted:
He expressed remorse towards the victim and stated that the victim should have never been subjected to his actions.
23Your plea of guilty of guilty will also attract a greater amelioration of sentence, as it is entered at a time when the court is still struggling under the difficulties caused by the pandemic.
Personal circumstances
24In terms of your personal circumstances, they were thoroughly outlined by your counsel Ms Dubroja and canvassed in the report of Mr Jackson of 20 October 2022. Your mother, Martine Power[8], also provided a letter to the court offering further insights into your history of disadvantage and instability.
[8] A pseudonym.
25You were born to Francesca Soot[9] and Martine Power. Ms Soot is your birth mother and Ms Power’s brother provided a sperm donation and is your biological father. You have had very limited contact with him. While your parents have other children, you were largely raised as an only child and have no contact with any other siblings. The relationship between your parents ended when you were seven years of age. You remained living with your birth mother, Ms Soot. You moved frequently in your childhood, including around Melbourne, Geelong and Wangaratta and attended several different schools.
[9] A pseudonym.
26Your mother Ms Power refers to the acrimonious end of the relationship with Ms Soot and how she struggled to maintain meaningful and consistent contact with you, resulting in significant emotional distress for you both.
Ms Soot re-partnered multiple times during your upbringing. One of your previous stepmothers passed away when you were in around Year 6 at school and you struggled with this. You then apparently had a conflictual relationship with your mother's new partner, which left you feeling unwanted and disconnected. In primary school, you also suffered a significant traumatic experience, which is outlined in the report of Mr Jackson, along with its impact on you.27From the young age of around 13, you first left home and your circumstances further deteriorated and you had little support. You had unstable and insecure housing, mostly couch surfing. You had intermittent contact with your mother, Ms Power, and for a period you did live with her and her partner and family, but it appears that you struggled emotionally and that situation was unsustainable.
28In terms of schooling, although you report enjoying it, perhaps unsurprisingly given your circumstances, you experienced difficulties which led you to being expelled in Year 10. I note that you did return and completed VCAL when you were 18. As for your substance use, you commenced drinking alcohol, and smoking cannabis at around 14. From the age of 16, you started binge drinking and at around the time of the offending, you were drinking daily. Since the offending, you have worked on reducing or minimising your use of these substances and have expressed a desire to stop.
29From a young age, you started experiencing significant mental health issues and were prescribed antidepressants when you were in Year 7. You have had previous contact with Headspace and an organisation called Mesay. Over time, your diagnosis and medication regime has changed. You have previously been prescribed antipsychotics such as Seroquel and you are currently prescribed the antidepressant Escitalopram .
30As already noted, you have experienced psychiatric admissions due to self-harming and suicide attempts.
31In his report, Mr Jackson assesses your full IQ as falling within the low average range. Your longstanding mental health problems appear to have arisen within the context of your previous abuse. You have a history of self-harming in the context of poor coping with stress. After your most recent psychiatric admission, that is after the offending, you were diagnosed with borderline personality disorder. Mr Jackson agrees with this diagnosis and suggests that it is likely that you have experienced this disorder for some years. He further states:
In borderline personality disorder, people have poor attachment and react very poorly to stress and will often act impulsively. They commonly have issues with self-harm, drug and alcohol abuse, mental health issues, poor emotional control and poor impulse control.
32In sentencing you, I take into account your personal history. I also give weight to your deprived background and my assessment of your moral culpability in the overall sentence.[10]
[10]Bugmy v The Queen [2013] HCA 37.
Factors in mitigation
33I also take into account the other mitigating factors that were relied upon by Ms Dubroja on your behalf. I take into account the delay in your case finalising, noting that the matter has been hanging over your head for a period and also that you have not reoffended in any relevant way.
34I have had regard to the continuing and fluctuating impact of COVID-19 on the prison system, which I accept generally would likely result in any prison term being more onerous.
35In particular, and most significantly in your case, I take into account your youth. Your youth is a primary consideration in sentencing. In assessing the culpability of a young offender, it is important to recognise that:
The young and immature are more prone to ill-considered or rash decisions…may lack the degree of insight, judgment and self-control that is possessed by an adult…and consequential thinking. Secondly, rehabilitation and avoiding or reducing the adverse effects of incarceration in an adult prison will usually be a fundamental aspect in sentencing, serving both the interest of the offender and the community more broadly.[11]
[11]Azzopardi v The Queen [2001] HCA 25.
Prospects of rehabilitation
36In all the circumstances, I consider that you present with reasonable prospects for rehabilitation. Mr Power, you are a young man, you only have one prior appearance in the Children's Court for unrelated matters, where you received a without conviction adjourned undertaking. Aside from an outstanding driving matter, there has also been no further offending. You have expressed remorse for your offending and importantly, assumed responsibility and demonstrated some insight.
37Mr Jackson confirms that from a neuropsychological perspective, you have good prospects and you clearly have the ability to engage in rehabilitation without difficulty. You need to actively address your drug and alcohol issues, as Mr Jackson is of the opinion that the main contributor to the impairments he identifies is your substance abuse. If you remain off substances, then
Mr Jackson considers there is a high probability that your cognition will improve back to normal.38You currently enjoy stable circumstances and have secure housing. You are casually employed in hospitality, working five days a week. Your goal is ultimately to become a mechanic. I accept from the letter of Ms Power, that you also have the ongoing support of family. You are also compliant with your current medication and I consider that structured psychological support and treatment will further enhance your rehabilitative prospects.
39I had you assessed for a community corrections order and you were assessed as suitable and also is displaying a cooperative attitude. The report concludes:
It is hoped that as a young man with his entire life ahead of him, if Mr Power is afforded an opportunity of a community based disposition, that he takes the opportunity to engage completely with Corrections and the treatment programs to address his offending behaviours.
Sentencing principles
40In cases involving sexual offences against children, it has often been said that the primary sentencing considerations are general and specific deterrence, denunciation of the serious nature of the crime and protection of the community. Given your youth, I consider that general deterrence and denunciation must give way to the promotion of your rehabilitation as the primary purpose of sentence. I also regard the protection of the community to be best achieved by your ongoing rehabilitation.
41I take into account the sentencing guidelines where relevant to your case, as provided for in s5 of the Sentencing Act1991 (Vic). As I noted earlier, the standard sentencing regime applies to your case and the standard sentence for sexual assault of a child under the age of 16 is four years’ imprisonment. The standard sentence for an offence is a sentence that, taking into account only the objective factors effecting the relative seriousness of that offence, is in the middle range of seriousness.
42When sentencing for a standard sentence offence, I must take the standard sentence into account as one of the factors relevant to sentencing. This requirement therefore is to be treated as a legislative guidepost, having the same function as the maximum penalty, in the same way that the maximum penalty is a factor in the application of the intuitive synthesis, so too is the standard sentence, no more, no less.
43Pursuant to s5B(2)(b) of the Sentencing Act 1991 (Vic), in relation to a standard sentence offence, I can only pay regard to sentences previously imposed, where the charge you have pleaded guilty to was the subject of the standard sentence scheme. I can indicate that I have considered and had regard to other sentences.
44The sentence I am about to impose in respect of your charge is lower than the standard sentence. I have considered all relevant factors, including the standard sentence, the objective seriousness of your offending and all of the powerful mitigating factors available to you in mitigation, and in particular, your youth.
45On your behalf, your counsel submitted that punishment could be achieved by the imposition of community corrections order. Given all the circumstances of your case, the prosecution accepted that such an order was appropriate. In the case of Bolton[12], the Court of Appeal stated:
A community corrections order is likely to be a particularly important sentencing option in the case of a young offender, where there may be a perceived conflict between the need to punish the offender and the importance both to the community and to the offender, of rehabilitating the offender. Since the community corrections order can be used to rehabilitate and punish simultaneously, the conflict is likely to be reduced, instead of needing to give less weight to denunciation or specific or general deterrence. In order to promote the young offender's rehabilitation, the court will be able to fashion a community corrections order which adequately achieves all of those purposes at once.
[12]Bolton v The Queen [2019] VSCA 21.
46I had you assessed for an order and you were assessed as suitable.
Sentence
47That brings me now to the actual sentence that I am going to impose Mr Power and as both counsel have indicated and it was submitted on the last occasion, it is a difficult sentencing task, there are a number of factors that I have canvassed in this plea, including the serious nature of the offending and its impact on Hunter and his family.
48Balancing up all of those factors, I will impose the following sentence. On Charges 1 and 2, you are convicted and I will impose a Community Corrections Order.
49I impose that order for a period of 18 months, with the following conditions applying. Supervision, you will be subject to the supervision of Corrections. I will require you to undertake 100 hours of community work and I will offset 50 hours of that work against treatment. In other words, if you undertake treatment, you can attribute 50 hours of that to the community work component, all right? Further conditions are treatment and rehabilitation to address your drug use. Treatment and rehabilitation to address your alcohol. Treatment and rehabilitation to address your mental health and treatment and rehabilitation to address and undertake programs to reduce your risk of reoffending.
50I am not required, as I read the legislation to make a s6AAA declaration, but I can indicate that your plea as I have stated, is important and has been an important factor in the sentence imposed. Had you not entered a plea of guilty, you can be assured that an immediate term of imprisonment would have been imposed followed by a lengthy community corrections order, all right? So that gives you some indication of the value of your plea, the value of acknowledging what you have done and accepting responsibility. Do you understand?
51OFFENDER: Yes, Your Honour.
52HER HONOUR: Very well. There is no s18 declaration here, there is no time that has been served.
53Pursuant to s61 of the Sex Offenders Registration Act 2004 (Vic), upon being sentenced, you become a registrable offender and you must comply with reporting obligations under Part 3 of that Act. Your reporting period is for eight years, as the two offences here, Category 2 offences occurred within a 24-hour time period. So I also make that order and you will receive paperwork shortly which outlines what your obligations are under the order.
54So what I am going to do at this stage, I will first turn to counsel and ensure that there are no other matters that I need to canvass or deal with and then what I am going to do, because this is a remote hearing, is I will need to go through with you the conditions, core conditions and the conditions I have imposed, confirm that you consent to the order and that you understand the consequences of breaching such an order, all right? But first, I will turn to counsel. Ms Strugnell was there anything further?
55MS STRUGNELL: Nothing further, Your Honour.
56HER HONOUR: Very well. Ms Dubroja, anything that I need to deal with?
57MS DUBROJA: No, Your Honour, just that I'm not sure which Corrections Centre he needs to report to.
58HER HONOUR: Very well.
59MS DUBROJA: But I was - that was Wangaratta.
60HER HONOUR: That is right, it is in the report.
61MS DUBROJA: Thank you, Your Honour.
62HER HONOUR: Where is it, Wangaratta?
63ASSOICATE: It is Wangaratta in the report, Your Honour.
64HER HONOUR: All right, thank you.
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