Director of Public Prosecutions v Rosengrave

[2023] VCC 2040

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00910

DIRECTOR OF PUBLIC PROSECUTIONS

v

BUCHANAN GEOFFREY ROSENGRAVE

---

JUDGE:	HIS HONOUR JUDGE GEORGIOU
WHERE HELD:	Melbourne
DATE OF HEARING:	24 August 2023
DATE OF SENTENCE:	3 November 2023
CASE MAY BE CITED AS:	DPP v Rosengrave
MEDIUM NEUTRAL CITATION:	[2023] VCC 2040

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:              Sexual penetration of a child under 16 years of age – limited criminal history – no prior convictions – history of illicit drug use – situationally motivated and opportunistic offending – below mid-range seriousness – significant delay – trial – family support – borderline personality disorder.

Legislation Cited:      Sex Offender Registration Act 2004; Sentencing Act 1991.

Cases Cited:Clarkson v the Queen [2011] VSCA 157.

Sentence:                  2 years and 3 months imprisonment, with 15 month non-parole period.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Batten (plea) Ms C. Picone (sentence)	Office of Public Prosecutions
For the Offender	Ms A. Peek-Lasry Mr L. Winter	Victorian Legal Aid

HIS HONOUR:

1Buchanan Geoffrey Rosengrave, on 7 June 2023 a jury found you guilty of a single charge of sexual penetration of a child under 16 years of age.

2I directed an acquittal on Charge 1 on the indictment, a charge of sexual penetration of a child under the age of 16, and you were found not guilty by the jury on Charge 2, a charge of indecent act with a child under 16.

3I shall refer to the victim in this matter as AB.  At the time of the offence, on 19 May 2013, AB was 14 years of age.

4I make the following findings of fact based on the evidence at trial.

5On 18 May 2013, during the afternoon, AB went to a house in Morwell.  She was there with her friend DC.  Living at that house was DC’s older brother, FE, and his partner.

6You were also present at the house, as a friend of FE.

7During the afternoon and into the evening, you, AB, DC and FE all consumed alcohol and cannabis.  AB became very intoxicated.  As the night progressed, you and AB spoke about a number of things. AB told you she was 14 years of age. You were 26 years of age.

8In the early hours of the following morning, 19 May 2013, everyone went to bed.  AB went to sleep in a room that had a mattress on the floor.  She went and lay down on the mattress.  You followed her into the room and onto the mattress.  After talking for a short time, AB removed her bra, and you removed the rest of her clothing.  After a while, you put your penis inside of AB’s vagina moving it backwards and forwards.  This conduct forms the basis of Charge 3, sexual penetration of a child under 16.

9AB felt pain in her vagina and told you to stop and pushed you away.  Despite her pushing you away, you attempted to have further sexual contact with her, but she refused your advances.  There was no further sexual contact between you and you both then fell asleep.

10Later that same day, AB told DC and DC’s sister about the sexual conduct that had occurred between you.

11On 17 August 2013, AB told her paediatrician that she had sex with a 26-year-old man a few months earlier and that she was 'stoned and drunk' at the time.  The paediatrician told AB’s mother what AB had told him. He also reported the disclosure to police.

12On 23 August 2013, AB made a recorded statement to police about what had occurred.  An investigation commenced, however, by this time, you had moved interstate and the complaint did not progress.

13In 2020, you returned to Victoria.  On 16 May 2020 you were arrested in relation to AB’s allegations, and subsequently you participated in a formal interview with police.  You answered 'no comment' to most questions asked of you.  You denied the allegations; denied being known by the nickname which others, including AB and DC, knew you; and denied being friends with FE.  These were all lies.

14At issue at trial was whether there was any sexual penetration as alleged in Charge 3.  Although you denied the sexual penetration, the jury was satisfied beyond reasonable doubt that penile-vaginal penetration took place.

Personal circumstances and background

15You were born in Darwin in November 1986 and you are now 36 years of age. Your parents separated when you were aged four.  After separation, you remained living with your father in the Northern Territory until the age of seven or eight when your father moved to Victoria.  You then spent approximately two years living with your mother.

16Your father re-partnered when you were aged approximately 10 or 11 and you then relocated with your father and stepmother back to the Northern Territory.

17Your father worked as a prospector and later owned a plant nursery in the Northern Territory.  You report that he was a very strict and harsh disciplinarian and you have never had a close bond with him.  He is now aged in his 70s.  Your mother is aged in her 60s and resides in Sale. You did not have a close relationship with her.

18You have four older half-brothers and a younger full-brother and a younger full-sister.

19You said you were raised in a relatively poor family.

20You completed Year 7 while living in the Northern Territory.  You also attended schools at various locations in Melbourne.

21You rather confusingly reported to Jeffrey Cummins, psychologist, that you believe you were given a Year 10 pass at the conclusion of Year 7, when you were in high school at Humpty Doo, in the Northern Territory.  You said to Mr Cummins 'I think after Year 7 I just got pushed up levels because the principal was aware that something wasn’t quite right with me – but I’m not stupid.'  You described often being bullied about your poor spelling and limited reading ability.

22After leaving school in the Northern Territory, you relocated to Melbourne to live with your father and stepmother in Pakenham.

23Between the ages of 17 and 26 you intermittently worked in abattoirs in the Pakenham region.  You then undertook a Certificate III in Civil Construction and Plant Operations.

24Following the death by suicide of your girlfriend, for which you blamed yourself, you moved to Townsville where your younger brother was enlisted in the Australian Army.

25While in Townsville you met your de facto partner with whom you have three children, aged nine, seven and 10 months.  Your children and their mother now reside in Sydney.  You acknowledged that your relationship with your partner had been a mutually abusive one, reflective of your mutual drug abuse.

26Your relationship with your partner is described as an 'on again/off again' relationship.  

27I was informed by your counsel, Ms Peek-Lasry, that you have reunited with your partner.  You speak to her and your two older children by telephone twice a week from gaol.  It is your hope that upon your release you will return to live with them in Melbourne. 

28In more recent years you have worked as a machine operator in Torquay, and as a sheet plasterer with your younger brother with whom you were working when you were arrested in May 2020.  You report that upon being arrested and charged, your world fell apart and you stopped working. 

29You have a long history of drug abuse.  You began experimenting with ecstasy and methylamphetamine at around the age of 18 or 19.  You commenced using ice at the age of 27 or 28, including by way of injection.  You have also occasionally used heroin. It was submitted by Ms Peek-Lasry that you have had long periods of drug abstinence but you have had no formal treatment for your addiction.

30When assessed by Mr Cummins on 28 August 2023, you maintained your innocence of the charge of which the jury found you guilty.  You acknowledged that you had been drinking and smoking cannabis at the time of the incident and that you had stayed the night at FE’s house.  However, you denied any sexual activity took place.

31Notwithstanding your denials, Mr Cummins was of the opinion that your offending was most appropriately described as being 'situationally motivated and opportunistic.'  He also considered that your state of intoxication on cannabis and alcohol probably also played a role in your offending. 

32Mr Cummins reported that you did not present as having a psychopathic personality disorder, but you did present as having quite a dissociated personality style.

33In Mr Cummins’ opinion you meet sufficient criteria to be diagnosed with a borderline personality disorder, which is characterised by a 'pervasive pattern of instability of interpersonal relationships, self-image and affects, and marked impulsivity, beginning by early adulthood.'

34Using the risk for sexual violence protocol, Mr Cummins assessed you as having a ‘low to moderate, trending towards low’, risk for committing a further sexual offence.

Criminal Record

35You have a limited criminal history.  On 16 March 2007 for the offences of possessing amphetamine and using amphetamine, you were, at the Dandenong Magistrates Court, without conviction, placed on an adjourned undertaking for 12 months and ordered to pay $400 to the court fund.  You also have criminal convictions that occurred after the offending that is before me.  They mostly relate to breaches of domestic violence orders, although there are also convictions for wilful damage, stealing, fraud and dishonestly gaining a benefit or advantage.  However, as I have said, they are not prior convictions.

Character references

36A large number of character references were tendered on your behalf.  I have had careful regard to each reference. I accept Ms Peek-Lasry’s submission that they essentially describe you as a gentle and kind person and that, to the authors of those references, this offence is considered very much out of character.

37Your brother, Michael Raymond, is an electrical engineer and managing director of Heroic Hearts Australia, a not-for-profit veteran mental health program.  He is aware of the charge for which you fall to be sentenced and states that it is an offence that is out of character.  He said you played a significant role in supporting him through his own mental health issues following his retirement from the Australian Air Force.  He states that your pragmatic and empathetic support proved invaluable to him following his transition out of the military.

38Your brother, Steven Rosengrave-Mungatopi states you are a kind-hearted and inquisitive by nature.  He lives in the Tiwi Islands but states that despite the miles between you, there remains strong family kinship and you are 'always in contact with each other'.

39Betty Helyard is your stepmother and has known you since you were eight years of age.  She states that the crime of which you were convicted is very much out of character and the person she knows has never displayed any aggression towards women or anyone else in her presence.  You have always treated her with love and respect.  She states that she has also watched you battle with your addiction for many years and hopes that you obtain the necessary treatment and counselling so that upon your release you can return to live with your partner and three children.  Ms Helyard writes that you are a much-loved member of the family and their door will always be open to you.

40Your brother, Phillip Grover, writes that since September 2019 you have lived with him.  He writes of your work as a lead machine operator for RCA Villages where you have helped build more than 170 homes.  You also worked for your brother’s company which was also engaged to perform work on the RCA Villages.  Your brother writes that despite the challenges you have faced over the years, you have consistently demonstrated a kind and caring nature.

41I have also received a reference from your father Steve Rosengrave.  Your father states that you struggled with formal education because of your dyslexia and also suspected Attention-Deficit Hyperactivity Disorder.  Notwithstanding those difficulties, your father states you have skills acquired through practical experience, natural creativity and an affinity with animals.  He states that you have always been kind and empathetic to others, especially those worse off than you.  Your father states that your partner and children are planning to move to Victoria, and he will help support your children while they await your release.

42Your sister, Regina Rosengrave, also writes of your diagnosis with dyslexia and your inability to concentrate during school.  She states that you were regularly taken advantage of by your peers and over time you became socially 'stunted'.  She states that your recreational drug use quickly accelerated, and this was when your life started to turn.  She states that all family members have done their very best to intervene and address your problematic behaviours.

43I have also received a reference from your brother, Tim Grover.  He is a retired combat veteran now residing in Queensland.  He served 20 years with the Royal Australian Infantry Corps.  You stayed with your brother and his wife for a period of time when you moved to Townsville in 2008.  Your brother states that you were always kind and respectful, as well as being susceptible to outside influences due to your caring nature.

44Anthony Finlay has known you since you were 10 years of age.  He has employed you on a casual basis over the past 12 or so years.  He writes that when you are sober, you are an excellent worker, very smart, reliable and a valued employee.  However, when you are on the drugs, he does not want to engage with you as you do not concentrate on the job or achieve what is required of you.  He states you have a kind heart and upon your release he would be happy to employ you.

Submissions

45In very helpful written submissions, Ms Peek-Lasry submitted that your offending was a 'one off' incident that occurred in the context of a long evening of cannabis and alcohol abuse.  She submitted that your conduct was not pre-planned and was likely the result of your impulsivity and failure to think through factors such as the age of AB and the state she herself was in at the time. There was also no suggestion of you grooming AB, nor was there a proven absence of consent. Your conduct, it was submitted, did not involve any violence. Ms Peek-Lasry noted that according to AB, later that day you took her home.

46Ms Peek-Lasry also relied on the fact that you were not in a position of trust or responsible for AB’s care.  Any power imbalance between you was purely as a result of the age difference between you and AB. 

47While acknowledging that there is a presumption that premature sexual activity causes long-term physical and psychological harm, and while not resiling from the inherent seriousness of the offence itself, Ms Peek-Lasry submitted that the objective gravity of your offending fell in the low to middle range. 

48Ms Peek-Lasry also noted that Mr Cummins did not find any indication that you had a specific sexual interest in underage females or any attitudes condoning sexual offending or sexual entitlement. She highlighted that you do not have any prior or subsequent convictions for sexual offending, and that according to Mr Cummins, your risk of committing further sexual offences was in the low to moderate range, and trending towards low.

49Regarding your situation since being remanded, Ms Peek-Lasry informed me that you are in a protection unit and, as at the date of the plea hearing, you had not had any personal visits because of prison restrictions.  It was hoped that you will soon be able to have visits from your family.

50Ms Peek-Lasry submitted that it is your strong desire to live a life free of illicit drugs, and to that end, you have been seeing a counsellor and a psychiatrist whilst in custody. You have also completed an occupational health and safety course and traffic management course.  It was submitted that you are endeavouring to use your time productively.  Ms Peek-Lasry also submitted that notwithstanding your battles with drug addiction you have had a good work history which should put you in good stead upon your release.

51Ms Peek-Lasry also relied on the delay between the offending and your ultimate sentencing which was due to your being interstate.

52Ms Peek-Lasry accepted the inevitability of a custodial sentence but submitted that in all the circumstances a long parole period was warranted to enable you to address your mental health and substance abuse issues under supervision, and to foster your rehabilitation.

53Mr Batten, who appeared on behalf of the Director of Public Prosecutions, fairly accepted that the prosecution does not allege you fled from the jurisdiction.  However, he submitted that police records show that police had made repeated attempts, over a number of years, to contact you.

54Mr Batten accepted that your offending was opportunistic stating that you did not plan to be in the same house as AB or plan to offend against her. Despite that, Mr Batten submitted that your level of moral culpability was high and that the only factor that served to reduce it was that your offending was not pre-meditated. 

55Mr Batten submitted that the age difference of approximately 12 years between you and the victim is significant and this makes your offending more serious. It was also submitted that given AB’s age and state of intoxication, she was even more vulnerable, and that you must have been aware of that fact.  Mr Batten submitted this was an aggravating feature of your offending.

56I was informed by Mr Batten that the victim of your offending was provided the opportunity to make an impact statement but declined to do so.

57Mr Batten submitted that general deterrence, denunciation and just punishment were the dominant sentencing considerations.  He submitted that while specific deterrence was not a prominent feature, it was a relevant consideration.

58As to the objective seriousness of your offending, Mr Batten submitted it fell within the 'mid-range' level.

59Both counsel referred me to a number of cases relevant to the sentencing consideration of current sentencing practice.

Sentencing considerations

60In Clarkson[1] the Court stated:

The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent. 

[1] [2011] VSCA 157 at [3]

61At the time you committed the offence, the maximum penalty was 10 years’ imprisonment. It is now 15 years’ imprisonment.  It is an inherently serious offence, particularly given the harm to a child that is presumed and often caused by premature sexual activity.

62The age difference between you was not insignificant. AB was only 14 years and four months, while you were 26 years of age. At the time you offended she was intoxicated and vulnerable. Although it is not suggested that AB did not consent, any consent given by her must be considered in the context of her state of intoxication and her immature age.

63I accept that you did not plan to commit the offence. It was not an offence that was pre-meditated. You did not groom AB. There was no accompanying violence or threat of violence. There also does not appear to have been any force or physical coercion exercised by you. Furthermore, you did not persist in trying to engage in further sexual activity once AB made it quite clear that she was not interested in any further sexual activity. It is not known on the evidence whether you used a condom or not.  

64Although it provides you with no excuse, you too were intoxicated, and I accept that Mr Cummins’ characterisation of your behaviour as 'situationally motivated and opportunistic' best describes the reason you behaved in the way you did on this occasion.

65To the extent that characterisation of the gravity of your offending is helpful, in all the circumstances I find it falls below the mid-range level of objective seriousness.

66You pleaded not guilty to the offence as is your right. However, by so doing you are not entitled to the often significant sentencing benefit that flows to those who plead guilty.

67In determining an appropriate sentence, I have regard to your personal circumstances, including Mr Cummins’ opinion that you suffer from a Borderline Personality Disorder. You also have a significant problem with illicit drug use. Until such time as you are able to obtain appropriate treatment for your mental health issues and your illicit drug issue, your prospects of rehabilitation must be viewed with some caution. This is so, notwithstanding the support you will receive from your family, and your reasonable work history. It is also a matter of concern that you continue to deny your offending. Such denial suggests a lack of insight into the harmful effects of engaging in sexual activity with children and a lack of remorse for your conduct.

68The sentencing principles of general deterrence, denunciation and just punishment are significant considerations to the sentence to be imposed. There is also some need for the sentence I impose to deter you from further offending given your plea of not guilty and your history of illicit drug use.

69I consider the delay between the commission of the offence and your sentencing to be a significant factor in mitigation of penalty. While you have not stayed out of trouble with the law in the approximate 10 years and five months since you committed the offence before me, you have in other respects gone about living a good life, working and trying to raise a family. You have also lived with the stress of the charges hanging over you for a period of almost three and a half years from the day you were arrested.

70I have had regard to the sentencing cases to which counsel referred and also to a number of sentencing cases referred to in the Judicial College of Victoria’s Sentencing Manual in my consideration of current sentencing practice. I am mindful that in some of the cases to which I have had regard the maximum penalty was one of 15 years, and not the 10 years that applies to your case.

Sentence

71Having regard to the circumstances of your offending, your personal circumstances, and each of the sentencing considerations I am required to take into account, on the charge of sexual penetration of a child under 16 years of age you are convicted and sentenced to two years and three months’ imprisonment.

72I set a non-parole period of 15 months’ imprisonment which is the minimum period I consider justice requires that you serve. I have particular regard in setting this non-parole period to the delay between your offending and the date of sentence.

73Pursuant to the provisions s34 of the Sex Offenders Registration Act, I find that you are a registrable offender, and your reporting period is for 15 years.

74You will be forwarded some documents shortly that set out your responsibilities under the Sex Offenders Registration Act.  I ask that you sign the acknowledgement confirming receipt of those documents, and with the assistance of the prison authorities, return that signed document to my chambers.

75Your counsel will no doubt explain to you, Mr Rosengrave, your obligations under the Sex Offender Registration Act and the penalties that may be imposed if you fail to comply with those obligations.  The document that is to be forwarded to you will also set out what are those obligations.

76Pursuant to s18 Sentencing Act, I reckon the period of 149 days, not including today, as already having been served under the sentence I have imposed.

- - -