Director of Public Prosecutions v Riley

[2024] VCC 490

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01548

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARCY RILEY

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	18 April 2024
DATE OF SENTENCE:	18 April 2024
CASE MAY BE CITED AS:	DPP v Riley
MEDIUM NEUTRAL CITATION:	[2024] VCC 490

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Sexual penetration of a child under the age of 16 – Commit indictable offence whilst on bail – Youthful offender – Delay – Very good prospects of rehabilitation – General deterrence.

Legislation Cited:      Crimes Act 1958 ss 49B(1), s49W(1); Bail Act 1977 s 30B; Sentencing Act 1991 ss 5(2), 6AAA, 48CA; Sex Offenders Registration Act 2004.

Cases Cited:Clarkson v The Queen (2011) 32 VR 361; DPP v Yuen [2020] VCC 1527; DPP v Calladine [2020] VCC 2014; DPP v Youl [2023] VCC 635; Williams v The Queen [2018] VSCA 171.

Sentence:                  Community Correction Order for period of 3 years, with conviction.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr S Tan	Office of Public Prosecutions
For the Accused	Mr T McCulloch	Marshall Jovanovska Ralph

HIS HONOUR:

Introduction

1Darcy Riley, you have pleaded guilty to one rolled up charge of sexual penetration of a child under 16 years contrary to s 49B(1) of the Crimes Act 1958 (‘Crimes Act’) as amended by the Crimes Amendment (Sexual Offences) Act 2016, which carries a maximum penalty of 15 years imprisonment (Charge 1).

2You have also pleaded guilty to the related summary offence of commit indictable offence whilst on bail contrary to s 30B of the Bail Act 1977, which carries a maximum penalty of 3 months imprisonment (Summary Charge 2).

3You have also admitted your Criminal Record.

Circumstances of the offending

4A prosecution opening was tendered on the plea and may be summarised as follows:

5The victim in this matter is Amy Nelson,[1] who was born in 2007 and was 13 years old at the time of this offending. She resided part time with her father, Justin Nelson,[2] and part time at her mother’s address. During this offending, she was staying at her father’s house.

[1] A pseudonym.

[2] A pseudonym.

6You were born in 2002 and were 18 years old at the time of this offending. You were employed as a carpenter and residing with your family in Melton West.

7This offending pertains to two incidents which occurred in July 2021. At the time, you were subject to a Community Corrections Order for unrelated offending.

8You met the victim on the social media application Snapchat in 2020 via a ‘quick add’ function. You told the victim you were 18 years old. There are varying accounts of what age the victim told you she was, but in all the circumstances she disclosed she was under 16 years old:

(a)   in her VARE, she said she told you she was 14 years old;

(b)   to her friend Sara Collins,[3] she said that you thought she was 15 turning 16; and

(c)   to Detective Senior Constable (‘DSC’) Beier, she said she told you that she was 15 years old.

Incident 1 (rolled up Charge 1)

[3] A pseudonym.

9On Saturday 3 July 2021, the victim snuck out of home in the late hours of the night and met up with you somewhere in the vicinity of a bridge. The victim attended by herself but was on the phone with her friend, Ms Collins.

10You and the victim spoke for some time before deciding to walk to your house which was nearby.

11You told the victim that members of your family were home and if anyone asked how old she was, that she should tell them that she was 16. You also told her that if police got involved that she should say she told you that she was 16. The victim agreed.

12You took the victim to your bedroom, where you and the victim lay in bed and watched a movie.

13Whilst you and the victim were lying on your bed, you asked the victim if she ‘wanted to fuck’, to which she replied ‘of course’. You removed the victim’s clothing and you and the victim engaged in penis/vagina intercourse. You did not use a condom.

14On Sunday 4 July 2021 at approximately 6:50am, you booked and paid for an Uber to collect the victim from your house and return her back to the vicinity of her house.

15The victim did not disclose the details of this incident to anyone at the time and told her father she had been with friends in a park.

Incidents 2 and 3 (rolled up Charge 1)

16On Friday 30 July 2021 at approximately 11:45pm the victim snuck out of home, leaving via the garage roller door.

17At approximately 11:57pm the victim was picked up in the vicinity of her house in an Uber, ordered and paid for by you, which dropped her off in the vicinity of your house.

18The victim’s father received a notification from his other daughter that the victim had left the house. The victim’s father checked the house CCTV footage and observed the victim sneaking out under the garage door. Due to the delay in the notification, the victim was already gone.

19At 12:02am on Sunday 31 July 2021, the victim’s father had a text message conversation with the victim, telling her to return home. The conversation continued over text for approximately an hour or so.

20During this time, the victim was in contact with her sister. The victim told her sister she was with ‘Darcy’.

21At your house, you and the victim were lying on your bed in your bedroom watching Netflix. You started kissing the victim and then you used two fingers to digitally penetrate the victim’s vagina.

22After a minute or two, you asked the victim if she wanted ‘to fuck’ to which she replied ‘yes’. You and the victim then engaged in penis/vagina intercourse. You did not use a condom and ejaculated inside the victim’s vagina.

23You and the victim continued to watch Netflix and you told the victim to keep the relationship quiet because you could get in trouble for it.

24You then asked if the victim, ‘wanted to go round twos’ and again engaged in penis/vagina intercourse.

25The victim stayed at your house for a period of time until you booked and paid for an Uber to collect her from your address and return her to the vicinity of her home address.

26The victim’s father was waiting for her in the street when she returned home and observed her get out of a silver Camry, which he believed to be an Uber, a short distance from the house.

27On the morning of Saturday 31 July 2021, the victim disclosed to her father that she had sex with you.

Investigation

28On Saturday 31 July 2021, the victim’s father attended Melton Police Station and reported his concerns that the victim was engaging in a sexual relationship with you.

29On the same day, the victim and her father were introduced to Senior Constable Forsyth and Detective Senior Constable Beier from the Brimbank Sex Offences and Child Abuse Investigation Team (‘SOCIT’) where the victim disclosed that you had recently digitally penetrated her vagina and engaged in sexual intercourse with her.

30A forensic medical examination was discussed with the victim and her father on this day but was declined.

31At approximately 8:40pm, Senior Constable Forsyth and Detective Senior Constable Beier attended the victim’s house. Photographs were taken of her bedroom, and her underwear was seized and submitted for forensic testing. A copy was made of the CCTV footage.

32On Thursday 5 August 2021, the victim attended Sunshine Police Station with her father and stepmother to report another incident involving sexual intercourse with you on a separate occasion earlier in July 2021.

33In October 2021, the victim made contact with police to advise she was wanting to proceed with a VARE statement.

34On 16 November 2021, a VARE statement was obtained from the victim at Sunshine Police Station.

Arrest and interview

35On 19 January 2022 you were arrested by appointment and a DVD recorded interview was conducted at Sunshine Police Station. You made admissions to knowing the victim and meeting up with her once in a park, but vehemently denied having any sexual contact with her.

36You stated several times you believed the victim was aged 16, but then admitted that she looked to be around 14 years old.

37You denied that the victim had ever been at your house.

38You denied ordering an Uber for the victim.

39You provided a DNA reference sample by consent during your record of interview.

40You were bailed on an application and warrant for a personal safety intervention order, which was subsequently issued by the Sunshine Magistrates’ Court. You were released with intent to summons on the criminal charges.

Further investigation

41A forensic examination was conducted on the victim’s underwear that was seized by police on 31 July 2021. Seminal material was detected on the front inner surface of the underwear. Your DNA profile was found to be a match.

42Uber records held in your name show that you booked and paid for Uber trips dropping you off in the vicinity of the victim’s address, on 4 July and 31 July 2021.

Admission

43On 21 January 2022, you had a scheduled meeting with Christine Parisi from the Department of Justice, where you discussed your attendance at Sunshine Police Station on 19 January 2022 in respect of this matter. You admitted to Ms Parisi that you had sexual intercourse with the victim.

Nature and gravity of the offending

44The crime of sexual penetration of a child under 16, is an inherently serious offence reflected in the maximum penalty set by parliament, being 15 years imprisonment. The offence however can be committed in a wide range of circumstances.

45Commonly, in cases of this nature, there is a significant age difference and/or power imbalance between the victim and the offender. In this instance however, while the offending remains serious, it is relevant that at the time of the offending your belief was that the victim was older than her actual age at the time, being 13. As outlined in the prosecution opening, there are varying accounts as to what the victim told you regarding her age. In her VARE the victim stated that she told you she was 14, to the police she states that she told you she was 15, and to her friend, that she thought you believed she was 15 turning 16. When interviewed by police you stated several times that you believed the victim was 16, admitting however that she looked to you to be around 14. In these circumstances the matter was to run to trial where you intended to rely on the defence that you reasonably believed that the victim was 16 years of age or more.[4]

[4] Crimes Act 1958 s 49W(1).

46On your own admission, you stated that the victim appeared to be younger than 16 and by your plea, you accept that she was indeed under the age of 16 when you proceeded to meet with her on two occasions and engage in sexual activity. It was submitted on your behalf that in circumstances where the sexual activity resulted after actively communicated consent by the victim, together with the evidence as to what the victim conveyed to you concerning her age, your moral culpability is reduced. To this extent reliance was placed on the well know passage in Clarkson v The Queen (‘Clarkson’), where the Court noted:

…there are exceptional cases - for example, in a relationship between a 15-year-old girl and an 18-year-old boy - where the consent is, relatively speaking, freely given and genuine and a reflection of genuine affection between the two. In such circumstances, as the cases illustrate, the sentencing court is likely to view the offences as less grave and the offender's culpability as reduced.[5]

[5] (2011) 32 VR 361, [7] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA). Cited with approval in Rose v The Queen [2022] VSCA 112 at [49].

47However, the Court went on to say:

The presumption of harm is unaffected by consent. It follows that neither the gravity of the offence nor the culpability of the offender is altered in any way by the victims consent alone. (On the other hand, proven absence of consent will significantly increase both the gravity of the offence and the culpability of the offender. Proof that the offender knew or suspected that the child was not consenting would found a charge of rape.)[6]

[6] Ibid [36].

48While the facts in Clarkson vary from the circumstances here, in my view while your offending remains inherently serious, in all the circumstances your moral culpability is able to be reduced to an extent.

Victim impact statements

49Victim impact statements were prepared by the victim, as well as her mother, Melissa Nelson.[7]

[7] A pseudonym.

50The victim describes how, due to her inexperience, she believed that your conduct was ‘normal’; it was only later that she realised she had been sexually offended against by you, an older person who she states ‘should have known better’. Your offending has clearly had significant, negative impact on the victim, who had to change schools after these events became public knowledge. Her mental health and personal relationships, including with family members, suffered greatly. The victim notes she is yet to fully process the impact of your offending against her and has not yet been able to confront these events without it having a negative impact on her mental health.

51The victim’s mother attributes her daughter’s mental health diagnosis to your offending. She states that the victim at one point was taken out of school for a period of two months as she was unable to cope as a result of the trauma she suffered following the incident. Ms Nelson has had to take time out of her own work in order to accompany the victim in attending numerous mental health service appointments. She goes on to state that your offending has also had a significant impact on her own mental health as she is constantly ‘on edge’ worrying about the impact of the incident on her daughter.

52I have taken the contents of these victim impact statements into account.

Personal circumstances

53You are now 21 years old. You grew up in the care of your mother, stepfather and siblings in a loving home. You are the youngest of five siblings.

54Your parents separated when you were two and your mother re-partnered two years later. You have a strong bond with your mother, and you experience separation anxiety when you are separated from her. Regarding your biological father, you previously stated to clinical psychologist Priscilla Mulher in her report of 24 September 2018 that ‘you do not want anything to do with [him]’. You described him as an abusive alcoholic and that you had contact with him on only three occasions at ages 7, 12 and 14. In your assessment with Community Correctional Services on 22 February 2024, you disclosed to the assessor that your father passed away when you were 16 years old.  You are otherwise from a loving family, notwithstanding conflicts that have arisen in the past between your mother and stepfather over your behaviour.

55From Grade 6 onwards, you experienced behavioural difficulties impacting your engagement with school. In Year 9, you started daily cannabis use which further affected your engagement. You state that you were ‘mouthy and aggressive’ and that you were regularly suspended which ultimately led to you withdrawing from all schooling halfway through Year 10. Around this time you also withdrew from your family.

56Your prior criminal history relates almost entirely to your interest in and misuse of motorbikes. The offending has led to periods of youth and adult remand in addition to non-custodial outcomes, including a community correction order in 2021.  Although your compliance with the community correction order was largely satisfactory, it is acknowledged that towards the end of the order you presented as being unmotivated to complete the remaining conditions. You went on to commit further driving offending in November 2021, shortly before the expiry of the order, which led to a breach, which has since been finalised. You have no other matters outstanding.

57No updated psychological report was tendered on the plea. However, other historical materials regarding your mental health demonstrate that you have struggled with symptoms of Obsessive Compulsive Disorder, Major Depressive Disorder, Post-Traumatic Stress Disorder and Cannabis Use Disorder (now in remission).  In a letter dated 10 February 2021, consultant psychologist Dr Duncan Rhoda of the Youth Mood Clinic at Orygen noted that your first contact with mental health services was while you were in youth custody in 2018 whereby you experienced separation anxiety from your mother, panic attacks, self-harm and suicidal ideation.

58Since 2021, you have demonstrated a genuine capacity for change. You have ceased your cannabis use, achieved stability in your mental health, been employed full time for almost three years, ceased to commit any further driving-related offences since at least November 2022 and have made plans to obtain a driver licence for the first time. You have just commenced your fourth year as a carpenter’s apprentice, having worked for your brother’s business since 2021. You continue to reside with your mother and stepfather in Melton.

Sentencing considerations

59I take into account your plea of guilty. The matter resolved in this court following a sentence indication hearing before me. As such your plea demonstrates your acceptance of responsibility, it has saved the time and expense of a criminal trial and most importantly it has spared the victim in the matter from giving evidence at a trial.

60Mr McCulloch, who appeared on your behalf, submitted that delay is a significant matter to be taken into account and is largely unexplained. The matter was reported on 31 July 2021 and the complainant’s VARE was completed on 16 November 2021. You were interviewed on 19 January 2022 however charges were not laid until 25 May 2023. Thus the delay from the time the matter was reported until charges were laid is some 22 months. Such delay, it was submitted, is more relevant in circumstances where you were 18 at the time of the commission of the offence – the delay making you now ineligible for consideration for any youth justice order.

61I accept that delay is a relevant matter to be taken into account. First, none of the identified delay is attributable to you and it has resulted in this matter hanging over your head for a period of years unresolved. Secondly, the delay is relevant in that although you have a criminal history - predominantly in the Childrens Court - you have in the past few years settled, matured and moved on with your life. You have ceased drug use and have achieved some stability in your mental health. You have been in full time work for some three years and will complete your carpentry apprenticeship in the next year. Thus the ‘rehabilitation limb’ of the delay principle is particularly relevant in this instance.

62You are 21 and were 18 at the time of the offending. As noted, you have been in full time work for a number of years and it appears you have moved away from the type of driving related offending that is evidenced in your criminal record and committed when you were much younger.  At 21, you are still a relatively youthful offender and in my view your continued rehabilitation must carry weight in the sentencing discretion.

63As to your prospects of rehabilitation, for the reasons already outlined, in all the circumstances I consider your prospects of rehabilitation to be very good.

64I take into account your psychological diagnoses as detailed above and the impact on your mental health when you were previously incarcerated in youth detention. As such I accept that Verdins principles 5 and 6 are matters I am able to take into account.

65Turning to deterrence, it is self-evident that general deterrence is a primary sentencing consideration in cases of this nature. As to specific deterrence, for the reasons already noted in relation to your prospects of rehabilitation and the fact that you have no prior history for offending of this nature, in my view specific deterrence need only carry minimal weight.

66In terms of current sentencing practice, Mr McCulloch relied on three recent decisions of this court which I have considered:

67In DPP v Yuen,[8] a community correction order was imposed in respect of a representative charge of sexual penetration of a child under 16, where the child was 15 and the offender 18. The offender received a discount for disclosing his offending to the police.

[8] [2020] VCC 1527.

68In DPP v Calladine,[9] a community correction order was imposed for charges of sexual penetration of a child under 16 and possession of child abuse material. The offending occurred over a five month period. The child was 14 and the offender 18. The offender had cognitive deficits and would have been vulnerable in custody.

[9] [2020] VCC 2014.

69In DPP v Youl,[10] a community correction order was imposed in relation to 10 charges of sexual penetration of a child under 16 where the child was between the ages of 13 and 14 and the offender 19 to 20. He received a ‘Doran discount’ and was considered to be immature for his age.

[10] [2023] VCC 635.

70Finally, I take into account that the charge to which you have pleaded guilty is a standard sentence offence. As such in addition to the matters that I am required to take into account under s 5(2) of the Sentencing Act 1991 (‘Sentencing Act’), I must also take into account that the standard sentence for the offence of sexual penetration of child under 16, is 6 years imprisonment.

71Having identified and considered the relevant factors in assessing the appropriate sentence as part of the instinctive synthesis, including the maximum penalty, the standard sentence and the nature of your offending, in this instance I have formed the view that the sentence I will impose on Charge 1 falls below the prescribed standard sentence.

72Mr McCulloch submitted that in all the circumstances a community correction order is able to meet the relevant sentencing considerations. I had you assessed for such an order and you have been found suitable. The prosecution submitted that a combination sentence is within range, submitting that there should be a component of imprisonment.

73In my view, in all the circumstances, a Community Correction Order is able to meet the relevant sentencing considerations in this instance. While all community correction orders are punitive in nature, the order I intend to impose will have specific punitive and rehabilitative components and it will be onerous. In that regard I note the Court of Appeal’s comments in Williams v The Queen,[11] as follows:

As was made clear in Boulton, in an appropriate case a CCO provides a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously. A CCO can be fashioned to address the particular circumstances of the offender and the causes of the offending, and to minimise the risk of re-offending by promoting the offender's rehabilitation. And although as the order of seriousness of offending conduct increases, the likelihood that such a disposition will be appropriate diminishes, a CCO may remain open, even in cases of very serious offending.[12]

[11] [2018] VSCA 171.

[12] Ibid [47], Priest and Hargraves JJA.

Sentence

74Mr Riley, would you please stand.

75Darcy Riley, on Charge 1, sexual penetration of a child under 16 years, you are convicted and will be placed on a community correction order for period of 3 years. You will be required to complete 250 hours of unpaid community work and engage in treatment and rehabilitation in relation to drug and alcohol use. You will also be required to engage in treatment in relation to your mental health, undertake programs to reduce reoffending and you will be subject to supervision.

76Pursuant to s 48CA of the Sentencing Act, I direct that all hours that you satisfactorily complete pursuant to the treatment and rehabilitation conditions of the community correction order may be credited as hours of unpaid community work.

77On Summary Charge 2, commit an indictable offence whilst on bail, you are convicted and discharged.

78Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 18 months imprisonment with a non-parole period of 12 months.

79Further, pursuant to Sex Offenders Registration Act 2004, you will be required to comply with reporting obligations for a period of 15 years.