Director of Public Prosecutions v Randell
[2012] VCC 1433
•20 September 2012
P
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAXSON JOHNATHON RANDELL[1] |
[1] Is a pseudonym
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 August 2012 | |
DATE OF SENTENCE: | 20 September 2012 | |
CASE MAY BE CITED AS: | DPP v Randell | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1433 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms G. Coghlan | |
| For the Accused | Mr S. Gardiner |
HIS HONOUR:
1 Jaxson Johnathon Randell[2], you have pleaded guilty to four charges. The charges are:
[2] Is a pseudonym
2 Charge 1, indecent act with a child under 16, the penalty for that charge is ten years' imprisonment.
3 Charge 2, indecent act with a child under 16 years, a similar penalty of ten years' imprisonment.
4 Charge 3, sexual penetration of a child under 16 years by introducing your penis into the mouth of the child, the penalty for that is ten years' imprisonment.
5 Charge 4, indecent act with a child under 16 years, again a penalty of ten years' imprisonment.
6 This offending took place over a period from September 1998 until February 2003. At the time of the offending you were aged between 14 and less than 18 years of age. Your victim, a stepsister, was aged between 9 and 14 years at that time. I will refer to her as "L" in these reasons for sentence.
Circumstances of the Offences
7 Charge 1. Indecent act with a child under 16 years.
8 The prosecution put this charge as a representative charge of offending by you where you rubbed L's vagina. The particular incident in this charge is that whilst you were in the baby-sitting role of your siblings and step-siblings you organised for the other children to ride their bikes outside the house. You then got L down on the floor of the hallway in the house and took off her pants. You then rubbed her vagina with your fingers. L lay there too scared to say or do anything. This activity stopped when the other children returned to the house after the bike ride.
9 There were other incidents of this same type of offending which were referred to as uncharged acts in the prosecution summary.
10 The period of the offending was between October 1998 and February 2003. The events occurred at all three homes your blended family lived at during that period.
11 Charge 2. Indecent act with a child under 16 years.
12 The allegation that supports this charge is that on an occasion between October 1998 and April 2000 you got L to touch your penis. It arose from circumstances where you were using the toilet and she was having a shower. You described this incident yourself in the record of interview with police. Questions 174 and the answer, and Question 115 and the answer.
13 There were three other occasions of uncharged acts which were at the same time as the offending of Charge 1, which I will refer to. On each of these occasions you got L to touch your penis at the same time you were rubbing her vagina with your fingers.
14 Charge 3. Sexual penetration of a child under 16 years.
15 The circumstances of this offence, which occurred in November 1999, were at the same time as one of the uncharged acts which is part of Charge 1.
16 On this occasion you and L were at the back of the garage of your Bayswater home. You placed your erect penis in L's mouth and moved it in and out. That is the charge of sexual penetration.
17 Charge 4. Indecent act with a child under 16 years.
18 The basis of this charge is your attempts to place your penis in L's vagina. The events in Charge 3 are the same time when you tried to have penile/vaginal sex with L whilst you had her lying down on a milk crate. You were unable to have sex with her on that occasion.
19 On two separate occasions after this event you attempted to have penile/vaginal sex with L but you were unsuccessful. These occasions occurred at the same time as the uncharged acts in Charges 1 and 2.
20 At the time of the offences you were young and immature. Of course your victim was younger by approximately four years and this has impacted on her life.
Your personal circumstances
21 I will now turn to your personal circumstances.
22 Mr Randell, you are now 28 years old. The offending alleged against you occurred when you were between the ages of 14, and, as I say, less than 18 years old.
23 When you were four years old your parents separated. You remained in the care of your mother who had two further partners during your youth. The first of the stepfathers was Eric[3]. You had a good relationship with Eric but never regarded him as your father in any real sense. That relationship finished in 1995.
[3] Is a pseudonym
24 In 1997/98 your mother married Charley Headley[4], who is your second stepfather. This marriage meant the blending of the two sets of three children; the three Randell children, of which you are the middle child, with the three Headley children, of which L is a twin. All came to live in the same house. In short, there were two adults and six children crammed into the house. The blended family moved a number of times, two addresses in Bayswater and one in Melton. In the early 2000s your mother and stepfather, Charley Headley, moved to Perth. You remained here in Melbourne and have built up your own life since that time.
[4] Is a pseudonym
25 Your education was fractured due to the movement of your core family. You attended four separate primary schools, you attended two high schools, and after Year 11 you commenced a diesel mechanic's apprenticeship. You have excelled as a diesel mechanic and have remained fully employed since your apprenticeship at a diesel mechanic business in Altona, subsequently you worked at Mercedes Benz, and your present employment of some four years' duration at a diesel mechanic business in Box Hill. You work full-time there on 12 hour shifts.
26 Your consistent and successful work record suggests good rehabilitative prospects and that you are a proper contributor to society.
27 When you were 19 you met your wife, Stacy[5]. She was eight years your senior and had a child who was one year old. You married Stacy in 2008. Your stepchild is now ten years old and in Grade 5. For all intents and purposes you have treated your stepchild as your own child. You hope to have a child of your own with your wife, Stacy, in the near future.
[5] Is a pseudonym
28 Your current circumstances are that you live in a rented unit with your wife and stepdaughter, you are employed full-time and so is your wife. Life is busy and financially tight for both of you.
Impact on Victim
29 I now turn to the impact on the victim.
30 The victim, L, has filed a Victim Impact Statement dated 1 August 2012. This was Exhibit 2 on the plea. The statement was not read out in open court. The victim, L, was present in court during the plea hearing itself.
31 L's statement sets out her suffering, depression and anxiety. She is on medication for depression and attends counselling. L stated she had attempted suicide. She sets out how her sleep is disrupted by nightmares and flashbacks to these events.
32 It is clear and understandable that your offending has had a direct and deleterious impact on the psychological wellbeing of L. She is doing the best she can to recover with the help of her partner, counselling and of course the responsibility of bringing up her own children. No doubt the finalisation of these matters, and in particular your plea of guilty in front of her, will give her some closure to this sad episode in her life. I hope that is so.
Sentencing Considerations
33 You have pleaded guilty to these offences at the earliest time. As I have said, you have pleaded guilty in front of your own victim here in court. The plea of guilty has a utilitarian benefit to the course of justice. Firstly, your plea gives certainty of outcome to these charges. Secondly, the resources of investigators, courts and other court services are not expended either on a committal hearing or a trial. Thirdly, the victim in this case and other witnesses have been spared the stress and tension of re-living and giving evidence about the offending behaviour. This also gives the victim, particularly, some closure on what has been a very distressing time for her. The plea of guilty is also evidence of your remorse for this offending. You have pleaded guilty to offences that occurred a long time ago when you were young and immature.
34 The prosecutor pointed out that in your record of interview dated 4 June 2012 you denied certain accusations. However, the indication of a plea and the fact of a plea at an early stage is, I accept, a true indication of your remorse and some degree of empathy for your victim, L.
35 In the report of Patrick Newton, which is Exhibit 3 on the plea, it was stated that you were clear that you had behaved inappropriately, you accepted your full responsibility for your actions and you wished you could make amends for them. I accept that you are truly and genuinely remorseful.
36 In sentencing you on charges of sexual offending against a child the protection of children is of paramount consideration. In this case you were a child yourself at the time of some of the offending and a very young and immature person at the time of the later offending.
Delay
37 The last of your offending was said to have occurred in February of 2003. You were interviewed in April 2010. Your arraignment before me occurred on 10 August 2012. Due to the uncertainty surrounding the legality of sentencing options in your case, the sentencing process itself has been delayed until today, 20 September 2012. In effect, you have had these charges or the prospect of them hanging over your head for two and a half years. The delay from the first of the offences to the time of the interview by police was nearly 12 years. From the beginning to end the total delay period is some 14 years.
38 The fact of delay has a number of considerations relevant to sentencing you for these offences. The first is that in these offences, if you were prosecuted close to these events, then you would have been facing the Children's Court regime of sentencing, not the adult court regime of sentencing you now face.
39 The next consideration is your age at the time of the offence. I have referred to this aspect a number of times in these reasons. In effect what has occurred due to delay is that you are a child offender being prosecuted as an adult. Your young age and immaturity at the time of the offences is a consideration in sentencing, it reflects on your culpability for the offending. The offending ended when you were youthful.
40 The delay between the last of your offending and now has seen a marked and improved situation for you. You are married, fully trained and employed as a diesel mechanic, assisting your wife in the raising of her daughter from the ages of one to ten years old. You have effected a substantial and proven rehabilitation. There has been a substantial and positive change in your circumstances since the offending.
41 The delay has also been dealt with by yourself in a positive way. Once the knock on the door, as I describe it, occurred and you were later charged and indicated your intention to plead guilty, you have sought out professional help and support. This is a positive reinforcement that you have come a long way on the rehabilitative path. You have been attending counselling with George Raphael. A report of his was Exhibit 4.
42 It is also clear you have the support of your mother, your wife, your sister and other friends who know of the circumstances of your offending that you now face. The testimonials in Exhibit 5 in this plea clearly show their support for you in these difficult circumstances.
43 The main considerations for sentencing are just punishment, general deterrence, specific deterrence, denunciation of your conduct and protection of the community. These considerations have to be carefully balanced with your rehabilitation and reintegration into the community as a useful and contributing member of society. In your case delay has given me confidence that you have rehabilitated prior to these court proceedings. In terms of protection of the community, particularly when these offences involve sexual offending against a child, I rely on, and accept, the opinion of Patrick Newton that you are a low risk of recidivism to sexual offending.
44 I note for completeness here that you have no prior or subsequent convictions and no matters are outstanding against you. I find you at present, a low risk of re-offending against the community.
45 The specific deterrent factor is not a high priority in your case. You have shown remorse and appropriate empathy for your victim. You have taken upon yourself counselling and have fronted up to your behaviour in an appropriate way. The shock of facing in adult life the consequences of youthful, immature offending, has been fully understood by you.
46 The principles of general deterrence and denunciation do play a role in this case. While it is recognised that offences were committed whilst you were young, the reality is that you are punished as an adult. The community has to understand that sexual offending against children will not be tolerated in a civilised society. It is for this reason that a term of imprisonment is appropriate to these charges.
47 The just punishment considerations in your case indicate that the whole of the sentence of imprisonment be suspended for the reasons set out in this sentence. The Sentencing Act empowers me to wholly suspend a sentence for offences committed at the time of your offending. The prosecution concede that it is an appropriate way to deal with it.
48 If you would stand please.
49 I sentence you as follows: Charge 1, you are convicted and sentenced to a term of imprisonment of six months. Charge 2, you are convicted and sentenced to a term of imprisonment of six months. Three months of the sentence in Charge 2 to be served cumulatively on Charge 1.
50 Pursuant to the provisions of s.6B of the Sentencing Act, you are sentenced on the following charges as a serious sexual offender: Charge 3, you are convicted and sentenced to nine months' imprisonment. That is to be served cumulatively on Charge 1 and Charge 2. Charge 4, you are convicted and sentenced to six months' imprisonment to be served cumulatively on Charges 1,2 and 3.
51 The total effective sentence of imprisonment is 24 months. I order that the whole of that sentence be suspended for an operational period of 24 months.
52 There was a forensic sample order but I didn't actually have a draft order.
53 MS COGHLAN: My apologies, Your Honour. May I suggest that an amended copy be emailed to your Associate by the end of the day?
54 HIS HONOUR: Yes.
55 I will just inform you that I am going to make a forensic sample order, which I recall was consented to. A forensic sample order means that there will be an appointed time for you to take a swab from within your mouth and that you are to comply with that and if you do not they can use reasonable force to make sure that happens. Do you understand that?
56 ACCUSED: Yes.
57 HIS HONOUR: Thank you. Pursuant to s.6AAA of the Sentencing Act but for your pleas of guilty in these charges I would have sentenced you to a term of three and a half years' imprisonment and I would have ordered a minimum term of imprisonment of two years which you would have served.
58 Is there anything further?
59 MR GARDINER: No, Your Honour.
60 MS COGHLAN: No, Your Honour.
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