Director of Public Prosecutions v Rayna (a pseudonym)
[2021] VCC 176
•25 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEX RAYNA (A PSEUDONYM) |
---
JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 January 2021 | |
DATE OF SENTENCE: | 25 February 2021 | |
CASE MAY BE CITED AS: | DPP v Rayna (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 176 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW – Sentence.
Catchwords: Plea of guilty – Sexual penetration of a child under 16 – Sexual assault of a child under 16 – Possess child abuse material – Charges 1 and 2 are standard sentence offences – Offender and victim were 23 and 14 years of age respectively at time of offending – No prior criminal history – Youthful offender – Delay – Offender sentenced as a serious sexual offender.
Legislation Cited: Crimes Act 1958 ss 49B, 49D, 51G; CrimesAmendment (Sexual Offences) Act 2016; Sex Offenders Registration Act 2004; Sentencing Act 1991 s 5(2), 6AAA, 6D, 6E, 44.
Sentence: Imprisonment for a period of 12 months together with a community correction order for a period of 2 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B Sonnet (plea) Ms C Pezzimenti (sentence) | Office of Public Prosecutions |
| For the Accused | Mr R Lawrence (plea) Ms G Boe (sentence) | Doogue & George Defence Lawyers |
HIS HONOUR:
Introduction
Alex Rayna[1], you have pleaded guilty to one charge of sexual assault of a child under the age of 16, contrary to s 49D(1) of the Crimes Act 1958 as amended by the CrimesAmendment (Sexual Offences) Act 2016, which carries a maximum penalty of 10 years imprisonment (Charge 1), one charge of sexual penetration of a child under 16 years contrary to s 49B(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016, which carries a maximum penalty of 15 years imprisonment (Charge 2), and one charge of possession of child abuse material contrary to s 51G(1) of the Crimes Act 1958 as amended by the CrimesAmendment (Sexual Offences) Act 2016, which carries a maximum penalty of 10 years imprisonment (Charge 3).
[1] A pseudonym.
You have no prior criminal history.
Circumstances of the offending
A prosecution opening was tendered on the plea and may be summarised as follows:
You were born in February 1995 and were aged 23 years at the time of the offending. The victim was born on in July 2004 and was aged 14 years old at the time of the offending.
In late June to early July 2018 you met the victim, Anika Avia[2], through mutual friends at a local soccer club. You became friends with the victim on the social media platform Instagram and began exchanging messages with her. The victim told you that she was 14 years old as soon as you met. You and the victim began dating soon after.
[2] A pseudonym.
On a date between 1 July and 30 September 2018 you picked up the victim from her friend’s house and took her for a drive. During this drive you pulled over and parked your car on some parkland. During this incident you and the victim got into the back seat of the car. You positioned yourself on top of the victim, began kissing her and touched the straps or clips of her bodysuit. The victim told you to stop, said that she needed to call a friend and got out of the car. The victim then refastened the straps or clips of her bodysuit. A short time later the victim got back into the car and asked you to take her home, which you did. It is these facts that relate to Charge 1, sexual assault of a child under 16.
On 7 December 2018 the victim attended a school excursion in Geelong. You met the victim there. You and the victim sat on a park bench out of view of the victim’s classmates. Whilst on the bench, you kissed the victim and digitally penetrated her vaginal lips for about 10 seconds. It is these facts that relate to Charge 2, sexual penetration of a child under 16.
After this incident, you and the victim did not meet up for a period of time, but you continued to stay in contact over Instagram.
On a date between 6 February and 3 December 2019, the victim sent a nude image of herself to you. It is these facts that relate to Charge 3, knowingly possess child abuse material.
You also sent nude images and video of yourself to the victim.
On 6 February 2019 the victim’s mother brought her into the Westgate Sexual Offences and Child Abuse Investigation Team (‘SOCIT’) office to report that she had confiscated the victim’s mobile phone after discovering messages between you and her daughter that were indicative of you being in a relationship with her daughter.
After the victim’s mother initially discovered the relationship between the two of you, she sent the victim to live with her father for a number of weeks. During the time the victim was away, the victim’s mother kept the victim’s mobile phone and sent a number of messages to you whilst posing as the victim. The victim’s mother provided investigators screenshots of the messages exchanged between you and her.
On 6 February 2019, the victim disclosed to Detective Senior Constable Zoe Warmuth that she had met up with you on a number of occasions, and that on one occasion when she was on a school excursion in Geelong, you digitally penetrated her vagina. At this point in time the victim did not wish to participate in a Video Audio Recording of Evidence (‘VARE’).
On 4 October 2019, the victim made a written statement advising she did not wish to proceed with a police investigation. On 7 October 2019, the victim’s mother reported that she had confiscated the victim’s mobile phone and had discovered that you and the victim had been exchanging more messages, including a naked image of the victim which was sent to you and naked images and video of you sent to the victim.
On 9 October 2019, the victim and her mother attended the Westgate SOCIT office. Detective Senior Constable Warmuth and Detective Senior Constable Adam Vaughan had a conversation with the victim, during which she disclosed that she had sent you a naked image of herself, and that she had received naked images of you.
On this date Detective Senior Constable Vaughan obtained photographs of the images exchanged between you and the victim. Out of all the images exchanged, one image depicting the victim’s breasts was classified as ‘child abuse material’, which is the subject of Charge 3. The victim again did not wish to participate in a VARE on this occasion.
On 3 December 2019, investigating police attended your home in possession of a search warrant. The warrant was executed and your mobile phone was seized. You were conveyed to the local Police Station where you were interviewed by Detective Senior Constable Warmuth in the presence of Detective Senior Constable Brie Williams.
During the interview you admitted to being in a relationship with the victim and having knowledge of her age. You admitted to digitally penetrating the victim’s vagina whilst she was on a school excursion in Geelong. You admitted to sending the victim naked images of yourself and receiving naked images of her from the waist up. You stated that the victim requested that you delete all the images from your Instagram chat, which you did.
When you were released after the interview, you were served with a Family Violence Safety Notice with the victim listed as the protected person. You were later served with an intervention order.
On 26 February 2020, your phone was analysed and no naked images of the victim were located.
On 17 December 2019, the victim and her mother attended at the Westgate SOCIT office to report that you had breached the order by having a letter given to the victim whilst she was at school. The victim participated in a VARE interview on this date, during which she disclosed that:
· she formed a relationship with you after you began messaging on Instagram;
· on 23 July 2018 you officially started dating each other;
· she told you how old she was, 14 years old, immediately;
· you met up together on several occasions;
· on one occasion that you met up, you took her for a drive and pulled over in some parkland where you kissed her and touched her bodysuit that she was wearing;
· on one occasion you met her in Geelong whilst she was on a school excursion and you digitally penetrated her; and
· you continued to exchange messages with her via Instagram even after her mother discovered the relationship.
Nature and gravity of the offending
Sexual offending against young people is very serious offending. Charge 2 is undoubtedly the most serious charge as it involves sexual penetration of a child under the age of 16. The seriousness of the charge is also recognised by Parliament by the maximum penalty, being 15 years imprisonment. Charges 1 and 3 are also serious charges carrying a maximum penalty of 10 years imprisonment in each case.
As is well established, the absolute prohibition on sexual activity with a child is founded on a presumption of harm. The significance of violence and harm which such conduct entails cannot be overstated.[3]
[3] DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148 at [47], referring to Clarkson v The Queen (2011) 32 VR 361 at [3].
Each case however must be assessed on its own facts. In this instance, it was submitted on your behalf that the offending falls towards the lower end when consideration is given to a number of factors.
Mr Lawrence, who appeared on your behalf, submitted that your offending did not involve aggravating factors such as use of violence or force. Further, that the breach of trust while acknowledged, did not involve a family or formal relationship such as employment and that the age gap between you and the victim was nine years and therefore modest when compared to other cases. Mr Lawrence also highlighted the fact that the penetration was digital and for a short duration thus the risk of pregnancy or disease transmission associated with penile vaginal penetration is not present.
In relation to Charge 3, it was submitted that the offending is limited to the one image that was in your possession. Further, that you did not distribute the image and therefore that charge may also be considered as at the lower level.
In terms of assessing the offending for the purposes of the Standard Sentence Scheme in relation to Charges 1 and 2, it was submitted that the offending falls below the mid-range taking into account the objective factors as outlined above.
While you are relatively young yourself, and somewhat immature, nonetheless you were 23 years of age and were in a position of influence when you engaged in a relationship with a 14 year old girl who was naïve in relation to sexual matters and clearly trusted you.
In all the circumstances, I accept that Charges 1 and 3 do represent offending towards the lower end, however in my view, Charge 2, while not at the high end of seriousness of that category of offending, remains serious offending for the reasons I have already stated. Mr Sonnet who appeared on behalf of the Director of Public Prosecutions submitted that in view of the relevant circumstances the offending falls somewhere between the low range to
mid-range. While such terms can be problematic, I accept the general categorisation.
I will address the standard sentence considerations further below.
Victim impact statement
A victim impact statement was prepared and tendered on the plea. The victim speaks of the profound and ongoing impact your offending has had on her sense of self, confidence and daily life. She describes the fear and trauma she experienced during the offending, which triggered anxiety and depression.
The victim states that prior to the offending she was a bubbly and joyful person who thrived socially and academically however as a result of the offending, she struggled with eating and sleeping, and that her grades at school began to drop. Her relationships with her family and friends have also been compromised as she feels that she cannot let people in. While clearly the victim has been traumatised, she writes that as a result of the incident she has become stronger and more mature as she moves on with her life.
I have taken the contents of the victim impact statement into account.
Personal circumstances
You are 25 years of age and were 23 at the time of the offending.
You were born in Thailand however your family are from Myanmar and are of Karen ethnicity. The Karen people have historically been involved in violent conflict with the Burmese government and as a result, large numbers of Karen people have fled to refugee camps on the Thai-Burmese border. You spent most of your childhood in a refugee camp with your family. You are the eldest of six and have always lived with your family. You have no prior criminal history, you have not used illicit drugs and you rarely drink alcohol.
You came to Australia in 2007 when you were 12 and settled in western Melbourne. You currently live with your family there. You attended local schools and struggled academically. You completed Year 12 obtaining a Victorian Certificate of Applied Learning.
After leaving school you completed two apprenticeships. The first was in roof tiling and more recently you completed a bricklaying apprenticeship. You are currently employed full time as a bricklayer working six or seven days per week.
Your employer provided a reference to the court where he expresses his surprise upon learning of the charges you are facing. He considers you to be a reliable, loyal and honest worker. He speaks of your otherwise good character and states that he will employ you again upon your release from custody.
A report was prepared by Martin Jackson, clinical neuropsychologist and tendered on the plea. Mr Jackson conducted a number of tests and assessed you clinically. You do not present with any overt psychological symptoms of mood disorder however, as a result of testing, Mr Jackson reports that your cognitive skills are at the low average to average range and while there are areas of mild impairment, your executive skills are still well within adult levels. Your weaknesses are primarily related to English being your second language.
Relevant sentencing considerations
This matter resolved before the first committal mention date and as such your plea of guilty is a plea at the earliest opportunity. Your early plea has not only spared court time and expense but most importantly, has avoided the need for the victim to have to give evidence and relive the offending. You also fully cooperated with the police making full admissions in your record of interview. In all the circumstances your plea and cooperation have facilitated the course of justice and you are entitled to have that taken into account in your favour.
You are a young man and it was submitted on your behalf that the principles in relation to youth have application in your case. Having considered the material, in my view you were also relatively immature and socially isolated at the time of the offending, while also suffering some cognitive difficulties as outlined in Mr Jackson’s report. In my view the principles that relate to young offenders do carry weight in this instance. As such, your rehabilitation should feature prominently in the sentencing equation.
Mr Lawrence also submitted that delay is a matter to be taken into account. As to the charges, the offending occurred in July 2018, December 2018 and February 2019 respectively. Ultimately the victim participated in the VARE in December 2019 and charges were laid in August 2020. While the delays may be explained, none are attributable to you. Further, in the context of the pandemic, the delay is not inordinate. What can be said is that during the period of delay you have not offended further, you have continued to work full time and you have had the burden of this matter as it has moved slowly through the criminal justice system. As such in my view delay can be given some weight in the sentencing discretion.
Turning to your prospects of rehabilitation. You come before the court with no prior criminal history and an excellent work history. You also have a supportive family. While you indicate that you initially did not appreciate the extent of your wrongdoing, you have now accepted full responsibility and in my view in all the circumstances, your prospects of rehabilitation are able to be assessed positively.
It was also submitted on your behalf that as a result of your cognitive deficiencies and limited English, as detailed in Mr Jackson's report, prison will be more burdensome for you. You will enter prison for the first time and be subject to COVID-19 restrictions, which will involve an initial 14 day quarantine followed by the ongoing restrictions that have been imposed on prisoners and their families. In the circumstances I accept that prison will be more burdensome for you.
Mr Sonnet submitted that general deterrence and denunciation of your conduct must be the primary sentencing considerations, which I accept. Protection of the community and specific deterrence are also relevant however need only be given limited weight given your lack of prior criminal history and excellent prospects of rehabilitation.
In addition to the matters that I am required to take into account under s 5(2) of the Sentencing Act1991, I must also take into account that Charges 1 and 2 are standard sentence offences. The standard sentence on Charge 1 is four years and on Charge 2, six years. As noted above, Mr Lawrence outlined a number of matters that when considered together, support the submission that the objective gravity of the offending falls below the mid-range.
Having identified and considered the relevant factors in assessing the appropriate sentence as part of the instinctive synthesis, including the maximum penalty and the standard sentence, in this case I form the view that the sentence I will impose on Charges 1 and 2 on the indictment falls below the proscribed standard sentence in each instance.
As you are being convicted of two or more sexual offences, each of which you will be sentenced to a term of imprisonment, pursuant to Part 2A of the Sentencing Act1991 you fall to be sentenced as a serious sexual offender on Charge 3.
Section 6D of the Sentencing Act 1991 provides that when sentencing you as a serious sexual offender I must have regard to the protection of the community as the principle purpose for which the sentence is imposed. While I do have regard to protection of the community, for the reasons stated above, in my view this principle must also be moderated accordingly.
Section 6E of the Sentencing Act 1991 provides that, unless otherwise directed by the court, every term of imprisonment imposed on a serious offender be served cumulatively. Considering the circumstances that relate to Charge 3 and the view that I have formed as to it nature and gravity, I do not propose to impose a cumulative sentence on that charge.
Mr Lawrence submitted that while a term of imprisonment must be imposed, a community correction order in combination with a term of imprisonment is able to meet the relevant sentencing considerations in this instance. Mr Sonnet submitted that the only appropriate sentence is a period of imprisonment that involves a head sentence and a non-parole period.
Both Mr Lawrence and Mr Sonnet provided to the Court a number of recent standard sentence cases in relation to sexual penetration of a child under 16. While each case must turn on its own facts, I have taken these sentences into account.
I had you assessed for a community correction order and you have been found suitable. As part of the assessment you were found to be a low risk of reoffending. As such minimal intervention in terms of conditions is recommended to maintain that low risk, based on the experience and advice of the corrections officer. Further, you were assessed by the County Court Mental Health Advice and Response Service and did not present with any mental health concerns. As such a mental health condition was not recommended as part of any community correction order.
A sentence of imprisonment must be imposed however in my view the applicable sentencing considerations are able to be met by the imposition of a combination sentence pursuant to s 44 of the Sentencing Act 1991. Upon your release from prison you will be placed on a community correction order and you will be required to undertake treatment and rehabilitation programs in order to further reduce and maintain your low risk of reoffending.
Sentence
Mr Rayna please stand.
Alex Rayna, on Charge 1, sexual assault of a child under the age of 16, you will be convicted and sentenced to 1 month imprisonment. On Charge 2, sexual penetration of a child under 16, you will be convicted and sentenced to 12 months imprisonment. On Charge 3, knowingly possess child abuse material, you will be convicted and sentenced to 1 month imprisonment. The sentences are concurrent and therefore 12 months will be the prison component of the combination sentence pursuant to s 44 of the Sentencing Act 1991.
In addition to the prison component of the sentence, upon your release you will placed on a community correction order with conviction for a period of 2 years. All community correction orders are punitive however the order you will be placed on will have a treatment and rehabilitation condition. You will be required to complete programs that address your offending as supervised by the Specialised Offender Advice and Treatment Services.
As Charges 1 and 3 are ‘Class 2’ offences and Charge 2 is a ‘Class 1’ offence, you are deemed to be a registerable offender and will be required to comply with the reporting requirements imposed by the Sex Offenders Registration Act 2004 for the remainder of your life.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of imprisonment of 2 years with a non-parole period of 14 months.
- - -
0
3
0