Director of Public Prosecutions v Richards (a pseudonym)

[2021] VCC 2143

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

AT MELBOURNE

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA RICHARDS (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2021
DATE OF SENTENCE:	14 December 2021
CASE MAY BE CITED AS:	DPP v Richards (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 2143

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:             Sexual penetration of a child under 16 years – possession of child abuse material – persistent contravention of a family violence intervention order trespass – using an unregistered motor vehicle – youthful offender – standard sentence offence – sentence imposed markedly below the standard sentence

Legislation Cited:     Sentencing Act 1991; Sex Offenders Registration Act 2004

Cases Cited: Victorsen v R [2020] VSCA 24; Azzopardi, Baltatzis and Gabriel v R [2011] VSCA 372; Worboyes v R [2021] VSCA 169

Sentence:278 days imprisonment and a CCO for a period of 18 months

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APPEARANCES:	Counsel	Solicitors
For the Director or Public Prosecutions	Mr J. Johnston	Office of Public Prosecutions
For the Accused	Ms A. Wong	Victoria Legal Aid

HIS HONOUR:

1Mr Richards[1], at the outset, I will tell you that I intend to sentence you to 278 days’ imprisonment on the first charge and declare the 278 days you have spent in custody as time served under that sentence.  On the other charges , I propose to sentence you to a Community Correction Order with conditions as to unpaid community work, supervision, mental health treatment and programmes to reduce the prospect of re-offending.

[1] A pseudonym.

2You have pleaded guilty to the following charges:

(a)   sexually penetrating a child under 16. I will refer to the child as Polly Hamilton[2]. This is a rolled-up charge comprising nine occasions of sexual penetration;

(b)   possession of child abuse material;

(c)   sexual penetration of a child under 16;

(d)   persistent contravention of a family violence intervention order;

(e)   trespass; and

(f)    using an unregistered motor vehicle.

[2] A pseudonym.

3The maximum penalties for the charges against you are:

(a)   sexual penetration of a child under 16 years – 15 years’ imprisonment;

(b)   possession of child abuse material – 10 years’ imprisonment;

(c)   persistent contravention of a family violence intervention order - 5 years’ imprisonment;

(d)   trespass – 35 penalty units or 6 months’ imprisonment;

4drive an unregistered motor vehicle – 25 penalty units for a first offence; or 50 penalty units for a second or subsequent offence.

Circumstances

5During August or September 2020, you and Ms Hamilton made contact through Snapchat.  She told you she was 13 and you told her you were 19.  You wanted to be her friend.  You did so and on 15 December 2020, you started dating.

6The first occasions of sexual penetration occurred on 26 December 2020.  On that day, you penetrated Ms Hamilton’s vagina with your tongue, fingers and penis.  The penetration by fingers and tongue came to light when you told the police.  These events constitute three of the occasions charged in the first charge of sexual penetration of a child under 16.

7About a week later, you again penetrated Ms Hamilton with your penis and ejaculated inside her.  This is the fourth occasion of Charge One.

8Between 10 and 18 January 2021, there was another occasion of penile penetration.  This is the fifth occasion of Charge One.

9Also, between those dates, there was another occasion of penile penetration.  On this occasion, you did not ejaculate in Ms Hamilton.  This is the sixth occasion of Charge One.

10Between 18 and 28 January 2021, there was a further instance of penile penetration.  Again, you did not ejaculate inside Ms Hamilton.  This is the seventh occasion of Charge One.

11On 28 January 2021, you and Ms Hamilton entered a house without the permission of the owner.  This constitutes the charge of trespass.  While in the house, there was penile penetration of Ms Hamilton’s vagina on two occasions and her mouth once.  You told the police about the last occasion.  These are the seventh, eight and nineth occasions of sexual penetration comprising Charge One.

12The police found you and Ms Hamilton in the house.  Both of you were arrested and charged with trespass.  The police examined your phone and found a video depicting non-penetrative sexual activity by Ms Hamilton.  You  said she sent you about 10 videos and asked you if you wanted them.  You said you did.  The possession of the video found by the police constitutes Charge Two, which is the possession of child abuse material.

13Also on 28 January 2021, you were interviewed by the police and made admissions.  You were served with a family violence safety notice.  On 2 February 2021, a Family Violence Intervention Order was made and three days later served on you.

14Meanwhile, on 1 February, you contacted the police wanting to give them further information.  On 6 February, you were interviewed again and made more extensive admissions.

15On 19 February, you went to a beach in Portland where you met Ms Hamilton.  You and she had been exchanging messages through social media.  While you and Ms Hamilton were in the water, you penetrated her vagina with your penis.  This constitutes Charge Three.  This act and the messaging constitute part of the circumstances of Charge Four. 

16On 24 February 2021, you drove an unregistered motor vehicle.  This constitutes Summary Charge Three.  Ms Hamilton was seated in the vehicle.  This constitutes another part of the circumstances of Charge Four.  Presumably at their request, you gave the police your mobile phone and unlocked it for them.  They discovered messages between you and Ms Hamilton between 19 and 24 February 2021.  When asked, you admitted contravening the Family Violence Intervention Order.  Again, this is part of Charge Four.

17On 25 February, the police found you in a motor vehicle with Ms Hamilton.  This is also part of Charge Four. 

18Finally, the police examined Ms Hamilton’s phone and found messages exchanged between you and her on 4, 7 and 11 March.

19On 11 March, you went to the police station to collect your phone and were arrested.  You were further interviewed and made additional admissions.  You have remained in custody since that day.    

Carla Lechner

20On 19 October 2021, Carla Lechner, a clinical psychologist, interviewed you at the request of your solicitors.[3]

[3] Report dated 15 November 2021.

21To Ms Lechner, you are both emotionally and socially immature.  You have a limited capacity to reflect and to envisage the consequences of your actions.  This is due, in part, to your untreated attention deficit hyperactivity disorder.  Complex information overwhelms you as does too much information.  You are naturally impulsive.  You barely tolerate frustration.

22Nevertheless, Ms Lechner assessed you as a low risk of re-offending sexually.

23As to treatment, Ms Lechner recommended a re-assessment of your attention deficit hyperactivity disorder with a view to restarting stimulant medication.  In any event, she recommended psychological treatment to manage the symptoms of your disorder.  Interestingly, she suggests that therapy could help you with immaturity and social anxiety. 

Personal Circumstances

24You are now 20.  You were born in Perth, Western Australia.  You have a sister, Julia[4], aged 24.  She is a registered nurse. 

[4] A pseudonym.

25At the age of 10, you were diagnosed with attention deficit hyperactivity disorder.

26At about that age, your parents separated, and you went with your mother and sister to live in the Ballarat[5] area of Victoria.  Despite your father’s considerable personal failings, when you were 15 or 16, you returned to Western Australia to live with him.  However, after he seriously assaulted you, you returned to Victoria and resumed living with your mother.  Your father was gaoled over this assault.  You have had no contact with him since then. 

[5] A pseudonym.

27Your schooling ended after Year 10.  You have had limited employment since leaving school, although in January and February of this year, you worked in plastering and rendering.  You believe you can return to that job after your release from custody.

28In custody, you live in a lodge with three other prisoners.  You work in the bakery daily.  You attend the gymnasium now and again.  You completed a first aid course.  Owing to restrictions, no other courses are available. 

Legal Considerations

Standard Sentence Scheme

29The charge of sexual penetration of a child under 16 years is a standard sentence offence.  On 1 February 2018, the standard sentence scheme commenced operating.  Only a few criminal offences are standard sentence offences for which standard sentences are prescribed.  The offence of sexual penetration of a child under 16 is such an offence.  The standard sentence for that offence is 6 years’ imprisonment.  What is the meaning of a standard sentence?

30First, it is the period of imprisonment specified for a particular offence.  Second, that period is the sentence taking into account only the objective factors affecting the relative seriousness of that offence and is in the middle of the range of seriousness.[6]  The objective factors affecting the relative seriousness of an offence are to be determined without reference to matters personal to you and wholly by reference to the nature of the offending.[7]  Third, in sentencing you for this offence, I must take the standard sentence as one of the factors relevant to sentencing.[8]

[6] S 5A(1)(b).

[7] S 5A(3).

[8] S 5B(2)(a).

31In Victorsen v R[9], the Court discussed the standard sentence scheme.  At paragraph 18, it said:

‘In Brown, this Court said that a judge

when sentencing for a ‘standard sentence offence’ must ‘take the standard sentence into account as one of the factors relevant to sentencing’.  This requirement:

•    is to be treated as a ‘legislative guidepost’, having the same function as the maximum penalty;

•    does not affect the established ‘instinctive synthesis’ approach to sentencing;

•    does not require or permit ‘two-stage sentencing’; and

•    does not otherwise affect the matters which the court may, or must,  take into account in sentencing.’

[9] [2020] VSCA 248.

Youths

32In Azzopardi, Baltatzis and Gabriel v R[10], Redlich JA examined the considerations which underlie the general primacy of an offender’s youth as a sentencing factor and the tension which exists between youth and deterrence.  In that case, the offending was horrendous and raised the need for deterrence and protection of the community against the considerations of the youthfulness of the offenders.  Despite the offence of sexual penetration of a child under 16 being a standard sentence offence, this is not such a case which raises that tension.

[10] [2011] VSCA 372 at paragraph 34 to 40.

33In sentencing young offenders, Redlich JA set out these considerations:[11]

(a)   

since young offenders are immature, they are more prone to

ill-considered or rash decisions.  They lack the degree of insight, judgment and self-control possessed by an adult;

(b)   young offenders have the potential to be redeemed and rehabilitated because typically their stage of mental and emotional development may make them more open to influences designed to change their behaviour positively as opposed to adults with established patterns of anti-social behaviour.  His honour added:[12]

“No doubt because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’”;

[11] At paragraph 34 to 36.

[12] [2011] VSCA 372 at paragraph 35.

(c)   the courts recognise the potentially detrimental and anti-social effect on young persons of being placed in an adult prison.   

34Section 5 sub-section 1 of the Sentencing Act 1991 sets out the purposes for which sentences may be imposed.  They are to punish you to the extent and in a manner is just in all the circumstances, to deter you and other persons from committing offences of the same or a similar character, to establish conditions within which the court considers that your rehabilitation may be facilitated to manifest denunciation of the type of conduct you have engaged, and to protect the community from you.  Generally, a combination of two or more of those purposes arise in criminal cases.

35Apart from an exception and defences which do not apply to you, there is an absolute prohibition against the offence of sexual penetration of a child under 16.  Plainly, my sentences on this offence should not arise after the importance of deterrence, general and specific, denunciation and protection of the community from you is given proper weight. 

36Section 5 sub-section 2 of the Act sets out various factors which, if relevant, I must pay regard. 

Discussion

37I have already spoken of the maximum penalties of each of the offences to which you have pleaded guilty and the standard sentence for the offence of sexual penetration of a child under 16.

Youth

38The dominant factor in my sentencing is your youth.  I have referred to the considerations underpinning the significance of youth.  You are immature even by the standards of persons of your age.  Ms Lechner makes that clear from her own observations and from her conversation with your mother.  Your immaturity stems from your background and your currently untreated attention deficit hyperactivity disorder.  It is seen in your actions.  They are affected by your limited ability to reflect about what you are doing and, even if you do, foresee the consequences.  This is alongside your natural impulsivity.   

Gravity of the offence

39Having said that, the offence of sexual penetration of a child under 16 is a serious offence.  Apart from the very nature of the offence, it is also indicated by the maximum penalty of 15 years imprisonment and the guide shown by the standard sentence.

40Family Violence Intervention Orders must be obeyed strictly in accordance with their conditions.  It is clear you paid no regard to the Order.   

Guilty Plea

41You were arrested, charged and remanded into custody on 11 March 2021.  There were two committal mention hearings.  At the second, you pleaded guilty to charges and were committed.  No one was required to give evidence.  These are very early pleas of guilty.

42They are also evidence of your remorse. 

43In almost every case, a plea of guilty deserves a mitigation of the sentence which would be otherwise imposed in the absence of such a plea.  At the very least, it avoids the need for a trial.  This saves time and expense of a trial and allows other cases to be heard earlier than would otherwise be the case.  It avoids the need for witnesses to give evidence at a trial.  Generally, this is an onerous task for witnesses and, I imagine particularly so for Ms Hamilton.

44These reasons for the mitigation of the penalty are well-known in legal circles, but I doubt they are well-known outside of those circles or the additional mitigatory effect of a guilty plea made at this time.  

45Due to the restrictions caused by the pandemic, the courts have struggled to deal with criminal cases efficiently.  This has prompted the Court of Appeal in the case of Worboyes v R[13] to explain that pleas of guilty, made at this time, are worthy of even a greater discount of the sentence.  It is important to quote a passage from the Court’s judgment in Worboyes’ case to show the emphasis placed on pleas of guilty in this time of restriction:[14]

‘As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested.  Unacceptable delay in the disposition of criminal cases is endemic.  Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts.  We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice.  Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead.  Such encouragement must come from an actual and palpable amelioration of sentence.’

[13][2021] VSCA 169.

[14] [2021] VSCA 169 at [35].

46Overall, your pleas of guilty require a very significant discount on the sentences which would otherwise have been imposed.

47You are genuinely remorseful for your actions.  Remorse is only significant if it is coupled with a determination not to re-offend.  I consider you have that determination.  Overall, I consider you prospects for rehabilitation are excellent.  

Criminal History

48As to your criminal history, you have none.  Accordingly, until the commission of these offences, you were of good character.  That requires some mitigation in penalty.  

Victim Impact Statement

49There is no victim impact statement.  I am aware the victim listened to this proceeding and may well even be listening to the proceeding today.  At the time of your offending, she was 13 and you were 19.  Unlike many of these cases, the difference in your ages is relatively small.  In terms of emotional maturity, the difference may be even smaller.  However, I know so little about the victim as to make that consideration speculative.  I daresay the experience for her has been very difficult and will leave a lasting mark on her psychologically; so much arises from the experience of judges and magistrates.    

Community Correction Order Assessment

50On 10 December 2021, you were interviewed for the purposes of a report for a Community Correction Order.[15]  You were assessed as suitable.  The author of the report made recommendations as to the conditions attaching to the order.  I will adopt those recommendations.

[15] Report dated 10 December 2021.

51Before I delivered these remarks, your counsel raised the issue of unpaid community work, submitting I should not include it as a condition to a Community Correction Order.  I reject that submission.  There is a need for the punitive element of that order for the proper sentencing on the remaining charges.

Sentence

52I will sentence you on Charge One to 277 days imprisonment.

53Subject to your consent, on Charges Two, Three and Four and the summary charges, I propose to sentence you to a Community Correction Order. It would operate for 18 months and have these conditions requiring you:

(a)   

to perform 250 hours of unpaid community work over the period of

18 months;

(b)   to undergo any mental health assessment and treatment; 

(c)   to be supervised, monitored and managed by the Secretary; 

(d)   to undertake any programme that addresses factors related to your offending. 

54I would direct that all of the hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

55You have been in custody for these charges for 278 days, excluding today.  I declare that the period of 278 days is reckoned as the period of imprisonment already served under my sentence on Charge One. 

Sex Offenders Registration

56Owing to the convictions on Charges One, Two and Three you are automatically a registered offender with the period of reporting being for the rest of your life.

57I understand you will apply for an exemption. 

s6AAA Declaration

58In the absence of your pleas of guilty, on Charge One, I would have sentenced you to 400 days imprisonment.  On Charges Two, Three, Four and the Summary Charges, the length of the Community Correction Order would have been 24 months and the amount of unpaid community work increased to 350 hours.   

Relation to Standard Sentence

59As can be seen, my sentences on the charges of sexual penetration of a child under 16 years are markedly less than the standard sentence for that offence.  They are less because of various factors including your youth and prospects of rehabilitation, the timing and nature of your guilty pleas, and your previous good character.

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