Director of Public Prosecutions v Randall

[2019] VCC 952

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-18-00971

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN RANDALL

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	24 June 2019
DATE OF SENTENCE:	27 June 2019
CASE MAY BE CITED AS:	DPP v Randall
MEDIUM NEUTRAL CITATION:	[2019] VCC 952

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Gray	Office of Public Prosecutions
For the Accused	Ms M. Brown	Oakleys McKenzie-McHarg

HIS HONOUR:

1Benjamin Geoffrey Randall, you have pleaded guilty to two charges of sexual penetration of a child under the age of 16 and one charge of possession of child pornography.  Those crimes carry maximum penalties of 10 years respectively.

2You are now 29 years of age.  Your plea of guilty came at a late time just prior to, as I understand it, a special hearing.  You have displayed virtually no remorse and your counsel is quite open about that.  You must, of course, get the utilitarian benefit of that plea of guilty. The victim did not have to go through cross-examination, but that is about as far as that can be taken.

3You have no, strictly speaking, relevant priors.  Certainly of a sexual nature though, there is, I note, one there for whatever it was, some form of family violence.

4Because of the nature of the offending, you will be placed on the Sex Offenders Register.  I must advise you that the reporting conditions will be for life and my associate will hand you a document.  I will ask you to accompany my associate, Ms Brown, if you do not mind?

5MS BROWN:  Yes, Your Honour.  Yes, thank, Your Honour.

6HIS HONOUR:  Yes, thanks for that, Ms Brown.

7Also, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you and that order is made and handed down.

8I am aware in the situation that Charges 1 and 2 are in fact representative counts.  I understand clearly the distinction between representative and rolled up counts and these charges are representative of what is certainly more than two occasions, but certainly not more than half a dozen.  I simply view them as having occurred in circumstances that should not be any way described as isolated.

9Also, you are to be sentenced as a serious sex offender on Charge 3 because of the nature of the charges.  I am aware that that requires that cumulation be automatic unless otherwise ordered, and I will so otherwise order because of principles of totality.  I am aware the community protection becomes the principle sentencing purpose and I certainly take that into account.

10The Crown do not seek a disproportionate sentence and I would not have done so in any event, but I direct that that be entered in the court records.

11A summary of the offending is that you were born in 1988 and the offending commenced within a few weeks of the complainant's 13th birthday.  You were clearly well aware of her age, having lived with her family for a period of time some years earlier.  You, in fact, had known the complainant for a number of years and had become quite close friends with her and the rest of the family.

12It is clear from the victim impact statements that the family had assisted you in many ways over an extended period of time.  You at one stage in 2014 in fact were living in a caravan on their property at Pakenham.

13You, by February of 2015, were engaged in regular contact with the complainant in person, via text messages and on social media.  Originally, those messages were not of a sexual nature.  However, it reinforced the feelings that the complainant had about being very close to you and she would say things to you and tell you things that you had done and secrets and stuff.  She said, 'I used to tell him everything.'

14For a short time in 2015, you moved to Churchill and contact ceased, but resumed later on in the year.  One night during 2015, you and the complainant discussed sex in text messages and you asked her if she was a virgin, and you told her that you missed her.

15On another occasion, she complained to you about having a bad day and you suggested that she should come down and stay with you one weekend.  When she indicated that she would not be allowed, you suggested that she 'just say you were going to a mates and that you would pick her up.'  Those conversations progressed to further talk of sex and you asking her what she would like and asked if she wanted to do it.

16It got to the stage where, during one exchange of messages, the pair of you were talking about sex, about taking each other's shirts off.  You said, 'Show me.'  She then sent you a photograph of herself without a top on.

17Same sort of incident occurred a few days later and the complainant became worried about the photographs she was sending.  You asked her, 'Well if I send, will you send?'  You followed that message up by sending a photograph of your penis to the complainant.  In response, she sent you a photograph of her breasts.  This is what gives rise to the third charge on the indictment of the possession.  She at one stage apparently had sent you naked photographs of herself to cheer you up.

18It became clear that the relationship was inappropriate and you at one stage said to her, and this is of significance in my view, 'Age didn't matter and it was just a number.'  Later on, you asked her, 'Is it not weird with our ages?' and she told you, 'No.'  She had said to police in her VARE ultimately that the relationship made her feel different, good and grown up.

19In February of 2016, it appears that she says you just got sick of talking about it and suggested that you do it.  The charges which I have indicated are representative occur in early February of 2016.

20Late afternoon, you picked her up from her mother's house and drove her to Churchill.  You told her to tell her mother that she was at a friend's house.  Your daughter was staying there.  There was an early dinner eaten.  The two of you were watching television.  The two of you were then hugging and kissing and you then inserted your fingers into her vagina.  That is Charge 2, first example of it.

21You then put a condom on and inserted your penis into her vagina.  Charge 1, first example of it.  She said that it hurt too much and in response, you withdrew your penis and said, 'No, we won't do it tonight 'cause it'll hurt.'  It is obvious it did occur on later occasions.  I do not have to go through the details of all those.

22Around about the time of this incident, she asked you why did you not try this when you were living together, in which you said to her because you knew that she was not up for it.  You said, 'You weren't ready.'

23There were other occasions when she has been to your house in Churchill.  I do not need to go through the details of all of that.  As I have indicated a couple of times now, I am aware that the charges are representative.

24Because of the nature of the neuropsychological material on your behalf, I have now, as I have indicated to counsel, read the entire record of interview and I do not need to really go into that.

25I also read the messages that have been sent and those messages firstly tend to indicate that your capacity to read and write is somewhat greater than the neuropsychologist seemed to have opined, but also makes clear what your counsel was saying to me about the nature of the relationship that was taking place.

26At one stage, the complainant sends a message to you that says, 'Ben, I've already told her not to tell people.  But all I can say if you're an idiot if you think other underage girls are gonna keep their mouth shut.  Remember, I'm not a normal 13 year old.'  It is clear that the relationship had become, in her mind, serious, but each of you was aware of what was taking place.  I am not going to buy into it any further other than I will be very shortly referring to the victim impact statements.

27That in brief is the offending.  Clearly in these circumstances and again, I do not propose to go into the detail of it, there was a very large gap in the ages.  You obviously do not operate as a normal 29 year old and she was just past her 12th birthday.  You were very aware of that.  It is not often that one gets sexual penetration charges for such an age difference where the complainant is so young.

28Tendered by the Crown were victim impact statements from her father, her mother and herself, and I take them into account.  The victim impact statement of the mother and father in particular outline the sense of betrayal, the sense of distrust, the unfounded sense of guilt about how all this came about.  It is clear from decisions such as The Queen v Esposito that the law has to protect families and young children from this sort of offending.  Whatever the level of maturity of a child might be, the law says, and so does common sense, that a 29 year old man cannot be having a sexual relationship with a girl who has just turned 13.  Those victim impact statements clearly bring out the consequences of such conduct and why it has to be condemned.

29The offending has got to be regarded as serious.  It calls for the application of general and specific deterrence, denunciation and appropriate punishment.  Community protection, I think it is very unlikely that you will do anything like this again because you would be aware of the sheer size and sentence you would receive if you did that.  General deterrence is very important in this scenario.

30I have heard your counsel's submissions about, in effect, principles of Verdins.  You are operating at a very low level and I do accept that for these purposes.  So I take that into account insofar as the sentencing process is concerned.  But any sense of general deterrence being moderated is not of great significance in my view. 

31Gaol and significant gaol is inevitable.  Your counsel conceded very properly that a gaol sentence with a minimum term is the appropriate disposition.

32I then, having looked at all the circumstances from the point of view of the complainant and her family, I then look to your own personal circumstances.

33Essentially those circumstances are contained in a report by Mr Jackson, a neuropsychologist.  He gives a diagnosis and I also have the very helpful submissions of your counsel.

34You clearly operate at a very low level.  It is also clear from the report of the psychologist that you do have reasonable index scores insofar as some matters are concerned.  Your full scale IQ is 67, which is clearly in the extremely low range and you have, as I said, reasonable skills in other areas such as perception reasoning.  It opines that your reading and writing level was around about Grade 2 of primary school.  Having read the record of interview and read the text messages that went backwards and forwards, I find that a bit hard to accept. Your level of comprehension of what was being sent to you and your level of writing in terms of responding would tend to be greater than what is put before me.  But I respect the opinions of that medical practitioner and certainly take them into account.

35You clearly knew it was wrong.  You have a number of factors that operate in your favour.  One is that you are in a relationship, in an appropriate adult relationship.  You have a daughter from a previous relationship who you were looking after at the time.  You have a good work record.  There is no reason why, upon your ultimate release, you should not be able to get out and work.

36I will take into account that you will be doing the sentence undoubtedly in protection and upon your ultimate release, you will have done courses which is, as I have indicated I think, would make your risk of reoffending certainly moderate, if not, low.  The prosecution accept your rehabilitation is really up to you.  Again, as I have already indicated, there is no real remorse here and appears to be little insight into the nature of what occurred.  The main thing from the community's point of view and from also I suppose everybody's point of view is that this simply does not happen again and that you are punished appropriately, bearing in mind all the circumstances for what has occurred.

37I have been shown comparable cases, which obviously every case depends on its own circumstances, and I take those into account.

38I do not really think in this situation that there is much else that can be said in your favour.  What you have done is wrong.  You know it is wrong.  You will be doing your gaol time in protection.  You will be undoubtedly sent to Ararat.  You will have very little in the way of visits if that is the case and you would do it in a situation where you have matters going on outside which will occur without your assistance and that will be nobody's fault but your own.  It will certainly play on your mind I would have thought.

39I am told from the Bar table and I accept it is to your credit that in custody, you will endeavour to get work as a billet.  You will keep working.  A lot of prisoners do not do that and again, I take that into account in your favour.

40In the end, the sentences that are imposed have to be condign.  It is always dangerous trying to classify these into high range or low range or whatever it might be.  At the end of the day, she had just turned 13 and you knew that.

41Accordingly, on Charge 1, three years.

42Charge 2, three years.

43Charge 3, three months.

44I direct that because of the matters being representative, but each of the two charges occurring on similar occasions, there will be very little accumulation despite what the Act says.  So four months of Charge 1 and one month of Charge 3 are cumulative upon each other and upon the sentence imposed on Charge 1.

45That gives an effective head sentence of three years and five months.

46In all these circumstances, particularly because of your intellectual deficits, I am prepared to give a minimum term or make parole available to you earlier than it might otherwise have been the case.  I direct that you serve a minimum term of 22 months.  As will be explained to you by your counsel, if you do not do the appropriate sex offending programs and the like, it is very unlikely that you will be released within that time frame.  But that is not a matter for me.

47Pursuant to s.6AAA of the Sentencing Act, I say that but for your plea of guilty, you would have been sentenced to be imprisoned for five years with a minimum term of three years and PSD of three days.

48MS BROWN:  As Your Honour pleases.

49HIS HONOUR:  No other orders I have to make?

50MR GRAY:  I think Your Honour would have made the disposal orders?

51HIS HONOUR:  They have all been done.  Disposal and forfeiture been signed.  They will be on the ‑ ‑ ‑

52MR GRAY:  Thank, Your Honour.

53HIS HONOUR:  Yes, all right.

54MR GRAY:  Nothing else.

55HIS HONOUR:  Yes, thanks for that.  You can take him out, thank you.  Yes, thanks, Mr Gray.  Thank your instructor as well as Mr Cecil.

56MR GRAY:  Please, Your Honour.

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