Director of Public Prosecutions v Romein

[2017] VCC 1329

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR 17-01821

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAYDEN CHRISTOPHER ROMEIN

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Warrnambool
DATE OF HEARING:
DATE OF SENTENCE:	15 September 2017
CASE MAY BE CITED AS:	DPP v ROMEIN
MEDIUM NEUTRAL CITATION:	[2017] VCC 1329

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms T. Bolton
For the Accused	Mr M. Turner

HER HONOUR:

1Jayden Christopher Romein, you have pleaded guilty before me to one charge of sexual penetration of a child under 16.  That offending comprises three separate acts, all arising out of the one occasion.  At the time of the offending, you were eighteen years old and the complainant was fourteen, almost fifteen and in Year 9 at school.  The two of you met via Facebook in early May 2016, after the complainant sent you a friend request and the two of you began chatting on Facebook messenger.

2On 10 May 2016, the complainant sent you a message asking how old you were, you replying that you were eighteen and you asking her her age.  She replied "Fourteen, nearly fifteen".  You told her to Snapchat you using a particular username, but the two of you had no further Facebook contact until 24 May 2016.  Between 16 and 30 May 2016, the two of you communicated via Snapchat almost daily, which included conversations with sexual contact.  You asked the complainant to send you nude photographs of herself and she sent you pictures of her breasts and vagina.  You sent her at least two images of your erect penis and ultimately the two of you agreed to meet at the
Edgar Street shops on 24 May, before the complainant went to school.  However, although you drove past her twice, the complainant continued to walk to school.

3Later that morning, you sent her a Facebook message saying you were at the agreed meeting place, but she told you she was already at school after "Waiting for you for ages".  You then sent her messages encouraging her to leave school and meet you, but she refused and suggested that the two of you meet the following morning.  You then sent her a sexually explicit conversation that night, sent her a Facebook message asking her "What are you going to do to me tomorrow?".

4There was further messaging between you, as you did not in fact meet up the next day.  Ultimately, there was no meeting until 31 May after a series of conversations of a sexual nature between the two of you.  The complainant waited outside the Edgar Street shops before she went to school and you picked her up in your car and drove to Yarraman Park, where you parked and the two of you got into the backseat.

5Once in the backseat, you told the complainant to perform oral sex upon you, pulling down your pants to expose your penis and the complainant in fact performing oral sex.  This is part of Charge 1 of the indictment, sexual penetration of a child under 16.  You then inserted your penis into her vagina which is also part of the charge on the indictment.  You did this while lying on top of her and then at your direction, she got on all fours and you again inserted your penis into her vagina from behind and ejaculated inside her without wearing a condom.  Ultimately, you drove her back to the shops, telling her not to tell anyone, not even her mother or her closest friends.  The complainant again asked you your age, to which you replied "Eighteen" and she told you she was "Fourteen,” you saying, "That's why no one can know".

6The complainant then walked to school and you drove to your ex-girlfriend's house.  You continued to send the complainant messages on Snapchat requesting naked pictures, but she ignored you and subsequently blocked you on both Snapchat and Facebook.  On 4 June 2016, the complainant told a Facebook friend about the sexual contact between the two of you.  On 6 June 2016, she reported the matter to police and undertook a VARE interview. 
On 24 June, you attended the Warrnambool Police Station where you were arrested and interviewed. 

7In that record of interview, whilst you admitted knowing the complainant, you denied knowing her age or school year level, but did tell police you knew it was illegal for an eighteen year old to have sex with someone under the age of sixteen.  You admitted meeting the complainant in person, but denied any sexual contact between the two of you, or in particular, having sexual intercourse with her.  You denied sending any naked pictures of yourself to her and denied having any sexual explicit conversations on Facebook or Snapchat.

8Ultimately, this matter was settled at the committal hearing on 7 September 2017, where only the informant was required to attend to give evidence.  The matter then proceeded by way of hand-up brief.  It was conceded by the prosecution this was an early plea of guilty and no witnesses have been cross-examined or subject to giving evidence in court, as a result of your plea.  No victim impact statement was received from the complainant or her family.  The prosecutor told me they had declined on the basis that they felt it would make no difference. 

9I now turn to your personal circumstances.  You are now nineteen years of age and currently residing in a rental property with your partner and her brother.  You had been in a relationship with your partner for something like four years, but at the time of this offending, the two of you had broken up and according to a reference I received from your mother, this was the cause of some hurt and distress to you.

10You were born in Portland.  Your parents separated in 2006, when you were about nine years of age.  Thereafter, your mother moved to Penola, but you remained living with your father, partly because you went to school there, your friends were there and you are involved in the local football and cricket teams, but also because your father, it appears, behaved in a fairly threatening manner over you residing with your mother and thereafter, it was difficult for you to have contact with her, as you were reliant on your father to drop you there which he refused to do.

11Your father re-partnered within months of the separation between your parents.  He did not live with his new partner and was often absent from the house staying with her or going on a holiday with her.  I am satisfied you do come from a law abiding family.  Your father is employed as an occupation health and safety manager.  Your mother is a recording and risk manager at the Eden Hope and District Hospital and was previously a primary school teacher.  You have a step-father who also provided as a reference, and whom I understand you regard more in a role of a father than your own father, he too is employed as a builder.  You have two older siblings, both of whom are employed, neither of whom have ever been in trouble with the law.  I note that you also have no prior convictions.

12You failed Year 11, made an attempt to repeat, but left school and took up employment as a sandblaster, which employment you hold to this day.  You began that employment on 15 February 2016, several months before this offending.  Your supervisor wrote a very positive reference about your performance, describing you as committed, showing maturity, reliability, dependability and honesty.  He said you were the first to be moved into further training as a spray painter.

13Your step-father wrote a reference saying he had known you for about eight years, that you had always been a keen sportsman playing cricket and football in Portland and on representative sides.  He described you as "a young lad with a bright future who has made a mistake in choices and he is very aware that it is wrong and he has my future support".

14In your mother's reference, she described your position at the time of your offending as being one where you had a strained relationship with your father, where essentially, you were avoiding your father who was often away from home and couch surfing with friends, when in fact he was home.  You had, as I have already mentioned, recently broken up with your girlfriend, were deeply hurt over this, unable to play sports due to a shoulder injury and had recently struggled and failed Year 11.

15She stated that you had shown strength of character throughout the ordeal of being charged, "and realised the consequences of his actions", which included informing your elderly grandmother of this charge.  She described you as trusting and caring, as someone who would do anything for anyone and considered the feelings of others.  She concluded, "However, on this occasion, he has made a stupid and immature decision, which I believe will never be repeated".  She also said she would continue to give you her full support.  A reference from a family friend also described you in positive terms, noted a change in your demeanour since being charged, that you have seemed stressed, lost weight and also expressed her opinion that you would not repeat this sort of offending. 

16I am going to turn back to your mother's comments about being a person who considered the feelings of others.  It is quite clear in my view, that on this occasion, you did not consider the feelings of the complainant who was, albeit consenting in the sexual encounter between the two of you, a school girl, underage and you involved yourself in offending which you knew perfectly well to be wrong.  The matter was somewhat aggravated in my view by the fact that you had unprotected sex with her, which is also not indicative of a person considering the feelings of others. 

17It appears that your personal situation has stabilised since this offending.  You have reunited with your girlfriend who came to court to support you.  You have continued your employment in a positive way.  It appears that matters have reached a head with your father, so that you are living in accommodation which is stable and presumably happy and your relationship with your mother and step-father is a strong and positive one.  I am satisfied that your prospects of reoffending are low and indeed that was the opinion of the Community Corrections officer who assessed you for suitability of a placement on a community corrections order.

18This was, and you need to understand this, and I have already mentioned this to you on the plea, serious offending.  It was thoughtless offending and to some extent, I am prepared to put that down to your youth and generally unhappy personal situation at the time, but this by no means provides an excuse for this behaviour.  Legislation outlawing sexual contact between a person of your age and an under aged teenager is there for a reason.  A person such as the complainant is vulnerable.  Let's just start with the proposition that she could have become pregnant as a result of your activities, which could have been ruinous for her.

19The law understands that teenage girls are not always particularly wise in the way they choose to go about sexual activity, which can often be harmful to their development, the matters they are supposed to be attending to at that stage in their lives and in this case, involved a distinct possibility of pregnancy.  You should be thoroughly ashamed of your actions.

20I stated during the plea that were you older, I would not have hesitated to consider a gaol sentence, but that is not a course urged upon me by your counsel or by the prosecution.  Because you are eighteen, you are termed under the Sentencing Act a young offender, where rehabilitative prospects play more than the usual role in the sentencing exercise before a Judge.  You have no prior convictions.  You entered a plea of guilty at an early stage.  I accept you are remorseful for that offending.  I accept that that offending occurred at a period of emotional and physical instability in your life.  You have no prior convictions.  You are employed.  Your personal situation has improved and you have been assessed as a low prospect of reoffending in the future.

21In all the circumstances therefore, I am prepared to place you on a community corrections order for which you have been found suitable.  Again, you need to understand that this was serious offending and that you are fortunate not to have been battling with the prospect of some sort of incarceration, either in adult gaol or in a youth justice centre.  I can only place you on a community corrections order if you consent to it and I need to outline the conditions of the order to you.  They are that you must report to the Corrections Office within two working days of the making of this order, that is by Tuesday of next week.

22Whilst on the order, you must not commit any offence punishable by imprisonment.  That does not mean you have to be imprisoned if you further offend.  But if you commit any offence for which theoretically you could be gaoled, like stealing a box of matches from Woolworths, you will have breached the order, you would be brought back in front of me and I will re-sentence you on this offending.  You can also be breached if you do not obey all the conditions on the order.

23Whilst on the order, you may not leave Victoria, without the permission of the Community Corrections Office.  You must inform the Community Corrections Office of any change of address or employment within 48 hours of that change.  You must not attend upon the Community Corrections Office, whilst under the influence of drugs or alcohol.  You must report to and receive visits from a Community Corrections officer.  You must obey all lawful directions of the Community Corrections Office.  I note that there is no indication that you have any difficulties with either drugs or alcohol.

24I am going to order the following special conditions.  The order will last for eighteen months.  You will perform 180 hours of unpaid community work whilst on that order.  You will also attend for programs designed to prevent reoffending.  That is, you will probably be directed to undertake the Sex Offenders Program and indeed, this is a program which I note is to be mentioned on the community corrections order as recommended by the Community Corrections assessing officer, Mr Steven Lamplough.

25It is noted by Mr Lamplough that because of the sex related offending, it will be very difficult to find suitable direct community work, which could therefore possibly require you to work on the community work team operated during the week in Portland, which may affect your employment.  I am a little concerned about Mr Lamplough, I think his employment is pretty important.

26MR LAMPLOUGH:  Yes, Your Honour, and that's why I put that in there just to take that into consideration.

27HER HONOUR:  No, I appreciate that you have, I should have read it more thoroughly.

28MR LAMPLOUGH:  Yes.  At the moment all we've got that - with these sort of charges that we can offer on a weekend would be every third weekend, which he's going to struggle to get through 180 hours through the time. 
But ‑ ‑ ‑

29HER HONOUR:  I am very reluctant to include something in an order which would interfere with a young person's employment and employment prospects I must say.  It's a very strong prosocial factor and it is said, after all, that
Mr Romein is a low risk of reoffending.  So would you think that it would be appropriate perhaps in the light of this, not to order work hours?

30MR LAMPLOUGH:  That's certainly a consideration, Your Honour.

31HER HONOUR:  Yes.

32MR LAMPLOUGH:  And that's largely why I pointed it out.

33HER HONOUR:  Yes.

34MR LAMPLOUGH:  I have grave concerns if he loses employment, that you know ‑ ‑ ‑

35HER HONOUR:  We could see more trouble?

36MR LAMPLOUGH:  Yes, Your Honour.

37HER HONOUR:  I thank you very much for indicating that to me and in the circumstances, I will not order unpaid community work, but I will order supervision which I was not going to do so that there will be an extra obligation for attendance upon the Community Corrections Office which will be burdensome for him.  So that is some sort of punitive measure in that case.

38MR LAMPLOUGH:  Thank you, Your Honour.

39HER HONOUR:  Yes, thank you very much for the indication sir.

40MR TURNER:  Your Honour, may I ‑ ‑ ‑

41HER HONOUR:  Yes.

42MR TURNER:  I rose an issue which will require Your Honour's indulgence and it relates to this, Your Honour.  My client and his partner had previously arranged to attend a music festival in Victor Harbour, the plan was effectively to leave today and that would not just involve going to the music festival, my client's partner's mother lives in Victor Harbour.  So they were planning on spending time with her as well.

43HER HONOUR:  How long are they prepared to ‑ ‑ ‑

44MR TURNER:  They are back on Tuesday, Your Honour.

45HER HONOUR:  On Tuesday.  Yes, Mr Lamplough.

46MR LAMPLOUGH:  I actually had a word to the defence about this, before the - the only recommendation I can make at this stage is that we don't start the order until Wednesday next week.  We can give permission, but I can't get that from my manager at this stage.  I can usually only get that once - the addressing of all the conditions that we have no concerns.  The only way I can see - and I have done it before, is recommend that the order not start for - until after (indistinct words).

47HER HONOUR:  Well given that Mr Romein does not present as a danger to the community in any shape or form, I am prepared to do that.  I do not know that he's going to particularly enjoy the order and in any event - and the Sex Offenders Program is a rigorous and onerous program, which in my view, for someone like him is in fact going to be fairly punitive in terms of what he will have to undertake.  I see you nodding and agreeing with that Mr Lamplough.

48So I am prepared to order that the community corrections order not commence until 20 September and thereafter, it will proceed for eighteen months after that and that means you must attend upon the Community Corrections Office by Thursday of next week.  Do you understand that sir?

49OFFENDER:  Yes, Your Honour.

50HER HONOUR:  Very well.  All right, have a seat, thank you.  Are you prepared to enter the order?

51OFFENDER:  Yes, Your Honour.

52HER HONOUR:  Thank you.  There is a forfeiture application in relation to the phone.

53MR TURNER:  Not opposed, Your Honour.

54HER HONOUR:  No, fair enough.  Yes, thank you.  Yes.

55MS COOMBES:  Just in relation to the (indistinct) legislation that applies, Your Honour.  It's a Class 1 mandatory, 15 years.

56HER HONOUR:  Yes, a Class 1, I am sure you have - you are placed - I have no choice in this, you are placed on the Sex Offenders Register for a period of fifteen years, all right.  That also in my view is punitive in nature.  Thank you.

57So Mr Romein, I hope you realise, you got yourself in an enormous amount of trouble and it is going to have a long lasting effect upon you, both in terms of what you have to do under this order and because you will be on the Sex Offenders register.  The courts have no discretion.  Once you commit this type of offending, that is what happens.  All right, Mr Turner will explain your obligations under the Sex Offenders register.

58For a young man who should never have been before the court, you have fallen off the wagon in a very big way and so just make sure, that now you are back on that wagon, you stay on it, all right?  Is it quite clear?

59OFFENDER:  Yes, Your Honour.

60HER HONOUR:  All right.  So the other thing you need to do - and I need to tell you this.  Stand up please sir.  I often put young men on community corrections orders who have got employment and it is really important that you understand that although you have been given this opportunity, by being placed on a community corrections order, as opposed to being incarcerated, it is not all over for you.

61Over the next eighteen months, you will have to meet a number of obligations under the community corrections order.  Many young men go away and think "My work is the most important thing" and they miss appointments, they miss sessions where they are meant to be attending and you will be asked to attend the Sex Offenders Program, on the basis that they are working and that is the most important thing.

62Do not make that mistake.  If you fail to attend on programs, ordered that you attend by the Community Corrections Office, that will result in a breach of the order and you will be brought back before the court and re-sentenced.  Do you understand?

63OFFENDER:  Yes, Your Honour.

64HER HONOUR:  It is a matter of when the Community Corrections Office tells you to jump, you say "How high?".  You got it?

65OFFENDER:  Yes, Your Honour.

66HER HONOUR:  You better make that - the Community Corrections Office is the only thing - this order is the only thing standing between you and incarceration and it is very important that you remember that.  I will get you to sign the form.  Thank you.  Yes, thank you.  Is that all?

67MS BOLTON:  It is Ma'am.

68HER HONOUR:  Thank you.  We will adjourn to 2.15 on Monday.  Thank you.

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