Director of Public Prosecutions v Ryan

[2011] VCC 2153

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-10-02059

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANNON RYAN

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	20 January 2011
DATE OF SENTENCE:	20 January 2011
CASE MAY BE CITED AS:	DPP v RYAN
MEDIUM NEUTRAL CITATION:	[2011] VCC 2153

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D Plummer	Office of Public Prosecutions
For the Offender	Mr C Pearson	James Dowsley & Associates

HIS HONOUR: 

1Shannon John Ryan, you have pleaded guilty to three counts of sexual penetration of a child under the age of 16, contrary to s.45(2)(C) of the Crimes Act 1958. The maximum penalty for the offence is ten years' imprisonment.

2A summary of the evidence in this case was contained in a prosecution opening which was read out in court by the prosecutor and tendered in evidence.  The facts may be briefly summarised as follows: 

3In July 2010, you met the stepsister of the victim on Myspace, a social networking website.  Following this, the victim, posing as her stepsister, sent you a text asking you to purchase her alcohol.  You agreed and met the victim’s stepsister and the victim, at the Rosebud Plaza.  You purchased them some wine.  At the time, you had just turned 22 and the victim was 14 years and nine months.  The age difference between you was therefore seven years and three months. 

4Following the meeting at the Rosebud Plaza, the victim’s step sister sent you a text message stating that the victim liked you.  On 23 July 2010, the victim contacted you by text message and you commenced corresponding with her in that manner and on the social networking website Facebook.  During the course of this correspondence, you asked the victim how old she was and she told you, truthfully, that she was 14, "Fifteen soon". 

5The correspondence led to you agreeing to collect her from school at the Rosebud Secondary College on 29 July 2010.  Prior to this meeting, numerous messages passed between you and the victim which contained discussions about meeting to have sex with each other.  On 29 July 2010, you collected the victim from school and drove her to your house in Dromana.  After arriving there, you had sex with the victim, and it is this conduct, as detailed in the prosecution opening, that constitutes the offending to which you have pleaded guilty. 

6The offences to which you have pleaded guilty may properly be described as serious.  The victim was not lawfully capable of consenting to the acts of sexual penetration that you had with her, and you knew this to be the case.  In other words, you fully understood that it was unlawful for you to engage in acts of sexual penetration with her.  Nevertheless, I accept that the contact between you and the victim was initially at her instigation and it is probable that your offending would not have occurred but for this fact. 

7The matter was reported to police after the victim's mother became aware of your relationship with her daughter.  Generally speaking, offending of this nature must attract a penalty that is calculated to deter both you and other persons from engaging in acts of sexual penetration with persons under the age of 16.  I accept that general deterrence is an important sentencing consideration in cases of this type.  Denunciation of your conduct is also an important factor for me to take into account. 

8A comprehensive plea in mitigation was made on your behalf by your counsel, Mr Pearson, and a number of significant factors in mitigation were relied upon by him which I accept.  They were as follows: 

9(i) You were fully cooperative with investigating police and you are deeply remorseful for your actions;

10(ii) you pleaded guilty at the earliest opportunity and your plea may properly be described as an early plea;

11(iii) you have no prior convictions of any sort, no outstanding matters, and I am sentencing you as a first offender;

12(iv) you were born on 18 July 1988 and you are properly to be regarded as a youthful offender;

13(v) at the time of the offending, you were suffering from depression as a result of the termination of a relationship with a previous girlfriend and family responsibilities placed upon you as a result of your mother's severe, debilitating and enduring illness;

14(vi) your judgment was impaired by your depression and your relative immaturity as a result of factors identified by Dr Miriam Brookens in her psychological report which was tendered during the course of the plea;

15(vii) the likelihood of your reoffending is minimal and your prospects for rehabilitation must be regarded as excellent;

16(viii) you are a person of good character who has contributed to the community both as a volunteer lifesaver and as a member of the CFA.

17And finally, as I have stated, Mr Pearson emphasised that your prospects for rehabilitation must be regarded as excellent. 

18I accept these submissions, and in addition I have received in evidence a number of references that speak very highly of you.  I have concluded on the basis of the material before me that you are a young man of good character.  I have also concluded that your development and consequent maturity has been constrained by your mother's illness and also as a result of sexual assaults carried out upon you by a family friend when you were 12 years of age. 

19I have received in evidence a victim impact statement from the victim's mother, and I accept that your offending has had a negative impact upon her and her daughter.  It would appear that the victim has undertaken psychological counselling following your offending. 

20By operation of part 2A of the Sentencing Act 1991, you fall to be sentenced as a serious sexual offender in respect of Count 3. That means that the protection of the community is the principal purpose for which the sentence in respect of that count is to be imposed. However, the prosecution did not submit that I should also impose a disproportionate sentence in respect of that count and I have not done so.

21The prosecution submitted that a term of imprisonment was the only appropriate penalty in all of the circumstances of this case, but that it would be open to be to wholly suspend the operation of that sentence. I accept that submission, and in my opinion, the purposes for which this sentence is to be imposed may be achieved by a sentence that does not involve your confinement (see s.5(4) of the Sentencing Act 1991).

22In the result, the sentence of the court is as follows. 

23In relation to Count 1, you are convicted and sentenced to be imprisoned for a period of nine months. 

24In relation to Count 2, you are convicted and sentenced to be imprisoned for a period of nine months. 

25In relation to Count 3, you are convicted and sentenced to be imprisoned for a period of 12 months.

26Count 3 is to be the base sentence.  I order that six months of the sentence on Count 1 and six months of the sentence on Count 2 be cumulative on Count 3 and upon one another. 

27The total effective sentence of the court is therefore two years' imprisonment. 

28I further order that the sentence is to be wholly suspended for a period of three years. 

29But for your plea of guilty, I would have sentenced you to an immediate term of imprisonment of two-and-a-half years with a minimum term of 12 months. 

30In relation to Count 3, I declare that you have been sentenced as a serious sexual offender and I order that that fact be entered in the records of the court. 

31I further order pursuant to s.464ZF(2) of the Crimes Act that you undergo a forensic procedure for the taking of a scraping from your mouth and/or a blood sample in accordance with sub-division 30A of part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database, and I further order that pursuant to s.464ZF(2A) of the Crimes Act 1958 that for the purpose of undergoing the said procedure, you report to the officer in charge of the Rosebud Police Station at 95 Boneo Road, Rosebud during the period of four weeks commencing 28 days after this sentence or once any instituted conviction appeal is finally determined and the conviction forensic sample is upheld, whichever is the latter. My reasons for making this order are the seriousness of the circumstances of the offending and that the application was not opposed.

32I should also advise you, Mr Ryan, that the authorities are entitled to use reasonable force, if necessary, in order to obtain that forensic sample, and in those circumstances, it is obviously in your best interests that you cooperate with them for that purpose. 

33Mr Ryan, I am required pursuant to the Sex Offenders Registration Act, or the court is required pursuant to the Sex Offenders Registration Act to give you notice of your reporting obligations and you have already heard the discussions in relation to that.  I will just sign this notice now.  It contains the contact details and so on that will provide you with the necessary information for you to fulfil your obligations in relation to that legislation.  When I leave the court, my associate will ask you to sign the acknowledgment form.  Thank you. 

34I should also advise you that the operational period of the suspended sentence, Mr Ryan, is three years, and if you commit any offence punishable by imprisonment during that period of time, you may be brought back before this court and resentenced in relation to the matters that you pleaded guilty to today.  Do you understand that?

35OFFENDER:  Yes, Your Honour.

36HIS HONOUR:  All right, thank you. 

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