Director of Public Prosecutions v Ross (a pseudonym)
[2022] VCC 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BOBBY ROSS (A Pseudonym) |
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JUDGE: | HIS HONOUR JUDGE CARMODY |
WHERE HELD: | Latrobe Valley |
DATE OF HEARING: | 21 November 2022 |
DATE OF SENTENCE: | 21 November 2022 |
CASE MAY BE CITED AS: | DPP v Ross (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2017 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Grooming for sexual conduct with a child under the age of 16 – sexual penetration of a child under the age of 16 – supply of drug of dependence to a child – gross breach of trust – 20 years age difference between accused and complainant – standard sentencing scheme – serious sex offender
Legislation Cited: Sentencing Act 1991; s5B(2), s5B(2)(b), s5B(3)(b), 6D, 6E
Cases Cited: The Queen v Brown [2018] VSC 742; Worboyes v R [2021] VSCA 169
Sentence: Convicted and sentenced to five years and three months' imprisonment, with a non-parole period of three years' imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. McKenry | The Office of Public Prosecutions |
For the Accused | Ms K. Ljubicic | Balmer & Associates |
HIS HONOUR:
1Bobby Ross[1], on 21 November 2022, that is today, at Latrobe Valley County Court, you pleaded guilty to the following charges on Indictment No.N10839994:
·Charge 1, grooming for sexual conduct with a child under 16 years. This charge has a maximum penalty of 10 years' imprisonment;
·Charge 2, sexual penetration of a child under 16 years. This is a course of conduct charge. This charge has a maximum penalty of 15 years' imprisonment;
·Charge 3, sexual penetration of a child under 16 years. This is also a course of conduct charge. This charge has a maximum penalty of 15 years' imprisonment; and
·Charge 4, supplying a drug of dependence to a child. This charge has a maximum penalty of 15 years' imprisonment.
[1] A pseudonym name.
2You have admitted one prior conviction for driving in a manner dangerous. This case was heard in Wonthaggi Magistrates' Court on 2 December 2011. This prior history has little or no relevance to the current sentencing process here today.
3You have been in custody on remand for these charges since your arrest on
28 April 2022. This is your first experience of imprisonment. You have served a total of 207 days pre-sentence detention not including this day.Circumstances of your offending
4The prosecution tendered a Summary of Opening, which was Exhibit “A”. I will refer to it in part.
5The victim of your offending was a 13 year old girl, who I will refer to as 'Annette'[2] in these reasons or, alternatively, as the victim. You were 33 years of age. You were friends with Annette's mother. You had regularly been in the family home. Annette's parents were separated. The children lived with Annette's mother and her de facto in a small rural community. The biological father of the children lived in another rural community not far from your residence. The children, including Annette, would stay at her father's place on a regular basis.
[2] a pseudonym name.
6Between 20 September 2021 and 16 April 2022 you were in regular contact with Annette on Facebook Messenger. In that period of time you constantly communicated about going out with Annette and matters of sex and drugs were discussed in those communications. An example of your communications is as follows, and I am reading directly from the summary tendered by the prosecution.
7On Sunday 21 November 2021, you and the victim had a conversation about your ages. You asked her, 'So, just asking, how old are you? Just so I know', to which Annette replied, 'Haha, 13'. You then told the victim that you were 33.
8Over the next two months your conversations with Annette gradually became more sexual in nature and more frequent. Amongst other things you told Annette these things:
(a) 'I wouldn't pressure you to do anything - into anything. I'm not like that;
(b) All I want is someone to cuddle and kiss;
(c) Spooning does sound fucking amazing, lol. I'm a cuddly guy;
(d) It would be hard to keep my hands to myself; and
(e) Is it naughty for me to have imagined you in there with me?', referring to showering.
9By the end of February 2022 you began sending Annette pictures of the rooms in your house, such as the lounge room and your bed. You then put increasing pressure upon the victim about meeting up and you often reassured her that she would be safe in your company, saying things such as this:
(a) 'Don't be scared, I promise I wouldn't do anything that you don't want. I'm a nice guy, honestly;
(b) I promise to treat you like a princess;
(c) If you're serious about this I will come and get you, and you have to trust me, and I promise I won't get you caught. I will have you back before morning;
(d) I'm a gentleman, I promise; and
(e) I promise it will be okay'.
10On 26 February 2022, Annette was staying with her father. You contacted her on Facebook. You offered to buy Annette some drinks and asked her what was her favourite Cruiser flavour. Then followed in excess of some 50 messages between yourself and Annette when she finally agrees to meet you down the road from her father's place. You told her to sneak out, gave her directions about where to meet you and where you would pick her up in your motorcar. The two of you then went to your home, where you made her feel comfortable watching television and cuddling each other.
11In the early hours of Sunday 27 February 2022, you returned the victim back to her father’s house. You and Annette continued to exchange messages everyday thereafter and you became more overtly sexual, telling Annette you want her; that you cannot wait to spoon her.
12On Wednesday 2 March 2022 you tell her that 'I know the law says it's wrong, but it didn't feel wrong'.
13On Friday 4 March 2022, whilst staying at her father's residence, you and Annette arranged to meet again. You told her to bring 'ykyk'. You were referring to condoms for 'just in case'. At approximately 10 pm that night Annette snuck out of her father's home and met you. Annette then attended at your residence and you then returned her before the early hours of Saturday March 5, 2022.
14The conversation between yourself and Annette then continues to become more explicit, with you telling her that you were naked and discussing where the two of you might have sexual intercourse. You were telling her 'we can anywhere you like'. The victim, as in Annette, informed you that you would have “to pull out”, and then you replied, 'It's risky, but yeah, I can still pull out'. The communications from you and Annette continued, gradually becoming more explicit throughout this offending period. That is Charge 1, the grooming charge.
15On 11 March 2022, Annette was staying again at her father's place. She left the house to meet you nearby. You drove Annette to your residence. You then gave her two Rum and Coke's and you sat on the couch in your lounge room. You and the victim kissed each other and she took out a condom from her bag and gave it to you. You then led Annette into your bedroom, where you sat on your bed and continued to kiss each other for some time. You then removed your clothing and you placed the condom on your penis. You then placed lubricant on your penis, and on Annette's vagina, and then penetrated her with your penis. You moved your penis in and out of the victim's vagina for approximately an hour, until she became tired and you stopped penetrating her. You and Annette then had a shower and you got dressed. The two of you laid on your bed and watched a movie whilst cuddling each other.
16You have then taken Annette home in the early hours of Saturday 12 March 2022, where she got back into her father's house before he awoke.
17Later on that same day you told her that you had missed her and really enjoyed your time with her. You further stated that you were stressed out about what the two of you had done and asked that she promise not to tell anyone. This was the first occasion of penile vaginal sex; that is part of the course of conduct for Charge 2.
18On 17 March 2022, you and Annette had a conversation about the possibility that Annette could be pregnant. You assured her that that was unlikely. You also told her to delete all messages from you, just in case. You made arrangements with Annette to meet in the same manner on the following dates; 18 March 2022, 25 March 2022, 1 April 2022 and 8 April 2022. On each occasion you had penile vaginal sex with Annette. After each time you returned her to her father's place in the early hours of the next day. These events are part of the course of conduct forming the basis for Charge 2.
19On 4 April 2022, you tell Annette that you are concerned that Annette's mother will find out about the sexual relationship between the two of you. In the course of that conversation you say, 'Ya mum is scary and a good friend, so it makes it hard for me'. Your fear of discovery was not going to stop you.
20On Wednesday 6 April 2022, Annette told you that she had watched a YouTube on how to put a condom on. You wrote to her, 'I'd let you put the condom on my cock'. Annette then told you that she liked the feeling without one and you replied, 'I know. Shh, that's the naughty part. It's so much better without a condom'.
21On Friday 8 April 2022, Annette asked you, 'Do you have weed and papers?', to which you replied, 'Yes, yes. And I thought you might want to get high with me?' She has then told you that getting high with you would be fun.
22On Friday 8 April 2022, Annette attended at her father's home and at approximately 9.30pm again, she snuck out of the house. You drove her back to your residence. Whilst you were there you gave her a cannabis joint, which she smoked. The effects of the cannabis made her feel tired. On that visit you also penetrated her vagina with your penis for an unknown amount of time. After the two of you had finished you then drove her back to her father's place in the early hours of 9 April 2022. That is also part of the course of conduct sexual penetration of a child under 16 and also Charge 4; supplying a drug of dependence to a child.
23During the video-audio recording of evidence by Annette she disclosed that on at least three occasions between 5 March 2022 and 11 April 2022 you admitted to licking, sucking and putting your tongue in her vagina, and also you placed your penis inside her mouth on three occasions in that same time period. Again, those admissions and statements constitute Charges 2 and 3; the course of conduct of the sexual penetration of a child under 16.
24Over the Easter weekend Annette did not attend at her father's residence, but rather stayed with her mother and her stepfather.
25On Thursday 14 April 2022, you and Annette had a discussion about how she could sneak out of her mother's place to meet you. You told her, 'I don't want to go to gaol, honestly. Please, just be smart about what we do, 'cause I don't want to get in trouble. It sucks, but we have to be sneaky'.
26On the Saturday 16 April 2022, which was Easter Saturday, you convinced her to sneak out of her mother's home and meet up with you in your motor vehicle, despite having concerns about being caught. Annette met you at your car, as arranged, and you drove her to an unknown location and parked. You had penile vaginal sex with Annette on the back seat of your car. You did not use a condom. You also asked Annette to perform oral sex on this occasion. You also performed oral sex on her.
27After your sexual encounter with Annette you both got dressed and got back in the front seat of the motor vehicle, where you talked for a bit, and you drove her back to her home and stopped a short distance from her mother's home. You walked with Annette for a bit before saying goodbye and leaving her to continue walking home. Not far from the house Annette observed her mother standing in the driveway and realised that she had been caught. She told her mother that she had been having sex with you.
28Annette's stepfather called you and told you he wanted to talk to you about your sexual relationship with Annette. On 17 April 2022, around midday, you attended at their home and had a conversation with Annette's mother and stepfather. You apologised for the sexual relationship you had maintained with Annette and stated that you knew it was wrong. Annette's stepfather told you that you were not to see or contact her ever again and that you were no longer welcomed at their home.
29On 18 April 2022, in the afternoon, you sent Annette's mother a text message, requesting her to show it to Annette. The message told Annette to move on with her life, to go to school, and she had her whole life ahead of her.
30On Wednesday 20 April 2022, Annette's mother and stepfather attended at the police station and reported the matter to police. The next day Annette made her VARE statement to the police.
31On Thursday 28 April 2022, you were arrested at your home and transported to the Wonthaggi police station. You participated in a record of interview that day and provided 'no comment' to the allegations put to you. That, of course, is your right. You were then charged and you were remanded to appear at the Latrobe Magistrates' Court on 29 April 2022. You have been in custody since then.
32I note that an opportunity was given for the filing of victim impact statements in this case. That opportunity was understood by the people to whom it related and they have declined to make a victim impact statement.
Personal Circumstances
33At the time of the offending you were 33 years old. You are now 34. You were born in Queensland and lived there until you were approximately five years of age, when your family moved to Frankston to be closer to the extended family. You are the eldest child, with two younger brothers and two younger sisters. Your father was a cabinet maker and your mother worked as a personal carer. Your family moved to Gippsland in your teenage years. You continue to enjoy the support of your parents and siblings whilst you are in custody. You describe your upbringing as normal, with firm discipline within the family. You have not been mistreated physically or sexually as a child.
34In terms of your education you repeated Grade 2 at primary school level to improve your literacy. You struggled academically and ultimately left school in Year 10 to take up employment as a concreter. You later completed your Year 10 English and Mathematics at TAFE.
35You have always been employed. Your employment has included being a concreter in the construction industry, a labourer, and also a labourer in a crane company. More recently you have worked in the dairy industry.
36You have had a normal sexual development with a number of age appropriate relationships over your life. You have a daughter who is now 15 years of age; two years older than your own victim. You have no contact with her.
37Between the ages of 23 and 29 you were in a relationship which was conducted in tandem with the use of ice, which ultimately led to the ending of that relationship. You report being depressed and slipping further into drug addiction after that relationship broke down.
38After the breakdown of your last relationship your drug use was mainly cannabis and alcohol. It was during this period of drug and alcohol cycle that you offended against Annette.
39You have been assessed by Patrick Newton, a forensic psychologist, for the purposes of this proceeding. His report is dated 14 November 2022 and it was Exhibit 2 on the plea. Mr Newton assesses you as suffering mild depression and recommends you continue your current medication regime, which I understood was Avanza. Mr Newton assessed you to be of low-average intelligence. Mr Newton's opinion was that despite your offending you did not meet the criteria for paedophilic disorder, or any other paraphilic disorder.
Mr Newton assesses you as a low-moderate or average range for sexual offending risk in the future.40Whilst in custody you have done courses on alcohol abuse and drug dependency. You have engaged in woodwork as your prison job.
Sentencing Considerations
41The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.
42I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible, that you, as an offender, are rehabilitated and reintegrated into society.
43I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly, but not exhaustively, to the kinds of sentences imposed in comparable cases and the statistics for those sentences. I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another.
44The standard sentencing regime applies to Charges 2 and 3 on this indictment. The maximum sentence for Charges 2 and 3 is 15 years' imprisonment pursuant to s5A and s5B of the Sentencing Act. These charges are also subject to the standard sentencing provisions. The standard sentence for these offences is six years' imprisonment. The standard sentence only takes account of the objective factors affecting the relative seriousness of the offence of sexual penetration of a child under 16 years. The maximum sentence and the standard sentence are to be taken into account as a guidepost in the sentencing process.
45In s5B(3)(b), the Parliament enacted the standard sentencing provisions that are not intended to affect the approach to sentencing, known as the instinctive synthesis. In the case of R v Brown, Justice Champion set out that the standard sentence is not to take the predominant role in sentencing and is just one of the factors to be taken into account.
46It follows that the standard sentencing does not assume a dominant role in the determination of the sentence for your charges. The standard sentence prescribed by Parliament for the offences is simply one of the relevant sentencing factors to which the court must have regard, along with other sentencing factors identified which are required to be taken into account in s5(2) of the Sentencing Act. Further, so far as consideration of current sentencing practices are concerned s5B(2)(b) requires the court, when considering current sentencing practices for a standard sentence offence, to only consider sentences previously imposed where the relevant offence was subject to the standard sentencing scheme.
47The serious offender provisions of the Sentencing Act apply to Charge 3 on the indictment. Under the serious offender provisions of the Sentencing Act on your conviction and sentence, to a term of imprisonment in respect of Charges 1 and 2, in particular, I am required on the sexual offence charges thereafter, to regard the protection of the community from you as a principal purpose for which the sentence is to be imposed.
48If necessary, in order to achieve that purpose of protecting the community, I am empowered under s6D of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offences. This means that the sentencing task in respect of Charge 3 on the indictment is to be undertaken on the basis that the protection of the community from you is a principal purpose for which the sentence is to be imposed. To achieve that purpose a sentence may be imposed longer than that which is proportionate to the gravity of the offence, considered in the light of the objective circumstances.
49Section 6E of the Sentencing Act also requires that unless I otherwise direct with respect to Charge 3 on the indictment the sentence I impose on you is to be served cumulatively. I note here the Crown did not call for a disproportionate sentence, or for the cumulation contemplated in s6D or in 6E of the Sentencing Act, allowing for the matters I have already outlined. In my view, it is appropriate to impose only the degree of cumulation to which I subsequently refer, reflecting as it does, several episodes of offending. To do otherwise may produce a sentence which is not appropriate and is unjust.
50You have pleaded guilty to these charges. Your plea of guilty was indicated at an early stage. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea allows for the preservation of court and police resources to deal with other matters. Your plea vindicates the public confidence in the legal process set up to protect the community. Your plea has also avoided the necessity for Annette and her parents to give evidence in your trial or committal.
51Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates remorse on your part. I accept your expression of remorse to Mr Newton and to your sister, as set out in her reference, and I accept that they are genuine expressions of remorse.
52Your plea of guilty is entered at a time when the courts and the criminal justice system is under enormous backlogs due to the COVID-19 pandemic. The Court of Appeal in the case of Worboyes v The Crown, reported at [2021] VSCA 169, stated that a plea of guilty in pandemic times should attract a more pronounced amelioration of sentence than in ordinary times. The sentencing court must ensure that the plea of guilty results in a perceptible amelioration of sentence. I have taken that matter into consideration in finalising your sentence.
53Your offending is serious. The maximum penalties of 15 years' imprisonment for three of the four charges you have pleaded guilty to indicate the seriousness with which Parliament places on this offending. The indicators of the level of seriousness are as follows:
·(1) The age difference between you and Annette is 20 years. She was 13, you were 33;
·(2) The gross breach of trust. You were good friends with Annette's mother and had contact and access to Annette through that relationship;
·(3) You pursued Annette on the Facebook platform and changed the initial friendship chat to sexualised communications over time;
·(4) The sexual penetration charges continued over a period of some six weeks, and on numerous occasions for the six separate meetings;
·(5) On occasion you did not use a condom, increasing the risk of pregnancy and sexually transmitted infections;
·(6) You gave Annette alcohol and cannabis during your meetings with her;
·(7) You planned the meetings with Annette and constantly communicated with her to do so;
·(8) You continued the offending until you were caught out by Annette's mother; that is, you did not stop this offending on your own volition.
54I take into account your personal circumstances in fixing your sentence. You have a supportive family despite the nature of your offending. You have demonstrated a good work history, which is reflective of your family upbringing. I note your sister's reference, which was Exhibit 3, and the potential difficulty you may face in returning to your former community after completing your sentence.
55Mr Newton has assessed you for the purpose of the plea. You are not assessed to be a paedophile, or as having any other paraphilia condition. This fact enhances in an assessment of your prospects for rehabilitation. You have one prior conviction for driving offences. Your drug and alcohol abuse are negative factors in assessing your prospects of rehabilitation. On balance, I assess your prospects of rehabilitation as fair if you are to undertake the treatment and courses to address your offending in this instance. You have commenced some of that process whilst you have been on remand.
56I take into account that this has been your first time in custody. The conditions in custody due to the COVID-19 pandemic, and Corrections procedures to deal with it, have made lockdowns and limited time out of the cells a frequent experience for prisoners. I take into account the additional harshness and hardship on you whilst on remand, and continuing into your sentence, that these restrictions will cause compared to the normal times for imprisonment.
57I have cumulated those parts of the sentences that reflect the seriousness of each offence whilst, at the same time, considering the sentencing principle of totality to ensure that a crushing sentence is not imposed upon you.
58The sentencing principles of general and specific deterrence, just punishment, protection of the community, denunciation of your actions and your rehabilitation dictate that the only appropriate sentence is a term of imprisonment with a fixed non-parole period. If you are granted parole the Adult Parole Board will further supervise your rehabilitation.
59Would you stand please:
·On Charge 1, which is grooming the under 16 year old child, you are convicted and sentenced to two years' imprisonment;
·On Charge 2, sexual penetration of a child under 16, you are convicted and sentenced to three years and six months' imprisonment - that is the base sentence;
·On Charge 3, you are convicted and sentenced to three years' imprisonment; and
·On Charge 4, you are convicted and sentenced to two years' imprisonment.
·The cumulation for those sentences is as follows; the base sentence of three years and six months is for Charge 2. Add to that, and cumulated, is one year of the sentence in Charge 1, six months of the sentence in Charge 3 and three months of the sentence in Charge 4.
·That is a total effective sentence of five years and three months' imprisonment. I fix a non-parole period of three years' imprisonment.
60But for your plea of guilty I would have sentenced you to eight years and three months with a non-parole period of five years and nine months.
61I declare you have served 207 days pre-sentence detention.
62On the Sex Offenders Register, I order that you are placed on the Sex Offenders Register for life.
63And finally, I direct that pursuant to s6F of the Sentencing Act it will be entered into the court records that I have sentenced you in respect of Charge 3 as a serious sexual offender within the meaning of the Act.
64Counsel, can I just ask you to check my arithmetic? I can repeat the cumulation, if you like? It's one - these are the additional ones. It's one year on Charge 1, three years, six months as a base on Charge 2, six months on Charge 3 and three months on Charge 4.
65MR McKENRY: Yes, Your Honour. Thank you.
66HIS HONOUR: That's correct? Yes. I'll just hand down the Sex Offenders Register documentation. Ms Ljubicic, you can ‑ ‑ ‑
67MS LJUBICIC: May I approach my client?
68HIS HONOUR: Yes, certainly.
69MS LJUBICIC: Thank you. Thank you for that time, Your Honour.
70HIS HONOUR: Thank you. Mr Ross, you'll be under considerable shock there at the moment. You'll be given a full copy of this document; the Sex Offenders Register document which sets out your - all your obligations when you are released from custody. No doubt the Adult Parole Board will explain that to you in full when that comes. Counsel, thank you both for your assistance in this matter.
71MR McKENRY: Your Honour pleases.
72HIS HONOUR: Thank you very much. Are you going to see your client here or over in the cells?
73MS LJUBICIC: If I can have a moment with him here I'd be grateful.
74HIS HONOUR: Can he just remain for a short time? Thank you.
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